The legal questions on privacy as the internet evolves – what is private and what is public? – Leon Glenister

8 05 2011

People have really gotten comfortable not only sharing more information and different kinds, but more openly and with more people”: not a controversial statement from Mark Zuckerberg on the impact of the internet on privacy. Not only are people more willing to share private information, the internet means what is shared can be spread to millions of people in a matter of seconds. It becomes interesting, therefore, at what point information published about an individual on the internet enters the so-called ‘public domain’ and is incapable of protection for privacy reasons.

In the past week we have seen an outpouring of opinion on the use of injunctions to protect the private information of individuals. In simple terms, an individual can obtain an injunction to protect his private information as long as there is no undue limit on the public interest in knowing the information. But to be private in the first place, the information must not already be in the public domain. Max Mosley knows about this all to well. When photos and videos emerged of him in an orgy on the News of the World website, Mr Justice Eady refused to grant an injunction on the basis the page already had 1 million hits.

So, it would seem, 1 million hits is enough to take private information into the public domain. In a more recent example, an injunction was granted by the High Court to prevent the naming of a married footballer who was having an affair with glamour model Imogen Thomas. A scour of internet forums will quickly give you a list of candidates for the footballer in question, with a (very surprising) clear favourite. Even though this information is readily accessible, it would seem that this is still private information to the footballer involved since an injunction was granted against naming him. So where is the line to be drawn?

Another feature of the privacy and internet revolution is the existence of social networking sites. People post huge amounts of private information on Facebook for their friends to see – does this information remain private or is it in the public domain? A parallel issue has been dealt with by the High Court after a humorous misjudgment by the Prince of Wales. He wrote in his diary of the trip he made to see the Hong Kong handover. Some descriptions of the event were less than complimentary, at one point calling Chinese diplomats “appalling old waxworks” and describing a ceremony with “goose-stepping” soldiers. These journals were sent to close friends and advisers, the total number of people no more than 75. Mr Justice Blackburne held this was not enough to put these journals in the public domain.

This Facebook question is not purely academic since it is press practice to use photos of any newsworthy individuals from Facebook. A few months ago Sian Massey unwittingly became the centre of a national furore when she was subject to sexist comments from Sky Sports presenters Richard Keys and Andy Gray. The day after the comments were exposed a picture of her on a night out, taken from Facebook, adorned the front page of the News of the World. Disregarding copyright law on the reproduction of the photo, could she claim this photo was private? Or is it in the public domain because it is on her Facebook page?

The ultimate question on whether something is in the public domain would probably be based on a range of factors. Privacy protects an individual’s right to ‘informational autonomy’, that is, their right to control who knows what information about them. In relation to Facebook, someone controls who knows what information by deciding how many friends they have. However, there is a point where someone has so many friends the site is used almost as a marketing tool, and in this case information published may be deemed within the public domain. The question about internet forums is much more complex and will depend on where and how often information is published.

The questions raised show how difficult privacy is as a concept. As social norms progress with the development of the internet and how much we share, the law will soon be faced with some very interesting questions. I, for one, am looking forward to the case where a judge will have to deal with the intricacies of Facebook’s privacy settings.

This post originally appeared on the Law Think blog and is reproduced with permission and thanks.

“People have really gotten comfortable not only sharing more information and different kinds, but more openly and with more people”: not a controversial statement from Mark Zuckerberg on the impact of the internet on privacy. Not only are people more willing to share private information, the internet means what is shared can be spread to millions of people in a matter of seconds. It becomes interesting, therefore, at what point information published about an individual on the internet enters the so-called ‘public domain’ and is incapable of protection for privacy reasons.

In the past week we have seen an outpouring of opinion on the use of injunctions to protect the private information of individuals. In simple terms, an individual can obtain an injunction to protect his private information as long as there is no undue limit on the public interest in knowing the information. But to be private in the first place, the information must not already be in the public domain. Max Mosley knows about this all to well. When photos and videos emerged of him in an orgy on the News of the World website, Mr Justice Eady refused to grant an injunction on the basis the page already had 1 million hits.

So, it would seem, 1 million hits is enough to take private information into the public domain. In a more recent example, an injunction was granted by the High Court to prevent the naming of a married footballer who was having an affair with glamour model Imogen Thomas. A scour of internet forums will quickly give you a list of candidates for the footballer in question, with a (very surprising) clear favourite. Even though this information is readily accessible, it would seem that this is still private information to the footballer involved since an injunction was granted against naming him. So where is the line to be drawn?

Another feature of the privacy and internet revolution is the existence of social networking sites. People post huge amounts of private information on Facebook for their friends to see – does this information remain private or is it in the public domain? A parallel issue has been dealt with by the High Court [V1]after a humorous misjudgment by the Prince of Wales. He wrote in his diary of the trip he made to see the Hong Kong handover. Some descriptions of the event were less than complimentary, at one point calling Chinese diplomats “appalling old waxworks” and describing a ceremony with “goose-stepping” soldiers. These journals were sent to close friends and advisers, the total number of people no more than 75. Mr Justice Blackburne held this was not enough to put these journals in the public domain.

This Facebook question is not a purely academic since it is press practice to use photos of any newsworthy individuals from Facebook. A few months ago Sian Massey [V2]unwittingly became the centre of a national furore when she was subject to sexist comments from Sky Sports presenters Richard Keys and Andy Gray. The day after the comments were exposed a picture of her on a night out, taken from Facebook, adorned the front page of the News of the World. Disregarding copyright law on the reproduction of the photo, could she claim this photo was private? Or is it in the public domain because it is on her Facebook page?

The ultimate question on whether something is in the public domain would probably be based on a range of factors. Privacy protects an individual’s right to ‘informational autonomy’. That is, their right to control who knows what information about them. In relation to Facebook, what is in the public domain will probably depend on factors like amount of friends and whether you use the site as a marketing tool or just as a means to connect with friends. The question about internet forums is much more complex.

The questions raised show how difficult privacy is as a concept. As social norms progress with the development of the internet and how much we share, the law will soon be faced with some very interesting questions. I, for one, am looking forward to the case where a judge will have to deal with the intricacies of Facebook’s privacy settings.


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12 05 2011
Media law mop up: Mosley defeat; injunctions by tweet; and Wikileaks gag | media law & ethics

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