Women in Law. Privacy in a Glass House

Megan Richardson is Professor of Law at the University of Melbourne, Australia

‘Privacy – do we have that now?’ The question was put to me by an obviously sceptical immigration official as I entered Amsterdam last year, on my way to the fabulous Amsterdam Privacy Conference: three days of talking, listening and thinking about nothing but privacy. Despite my efforts at justifying my field in the next few seconds, I’m afraid not very articulately (in my defence I was coming off a flight from Melbourne), I was left with the impression that the official was unconvinced. All too soon the conversation ended as I moved through the line.

Afterwards I thought it was a fair question. In fact, it is one I have often been asked in various guises over many years as a teacher, writer, presenter, discussant and consultant on privacy law. There are so many reasons to think that, despite our efforts at regulating for privacy in the digital environment, the law offers only marginal support for the boundaries that individuals and groups may seek to erect around themselves. On the other hand, I believe that much can be learnt from taking a longer view of the law’s successful adaptations in the face of earlier new technologies and practices which have also challenged privacy. This insight is a starting point for the Advanced Introduction to Privacy Law I am currently writing for Edward Elgar.

On the other hand, it is easy in the digital maelstrom to forget that older-style cases about privacy, i.e. ones that are not so dependent on the latest digital technologies but rather emerge out of technologies and practices which have been with us for some time, might require further legal adaptation. An example is the Neo Bankside Residents v Tate Modern case which has been much discussed in the media after the judgment of Mann J last month. Reading this, I can’t help thinking that if, instead of the Tate Modern’s amazingly high-up viewing platform (a feat of architecture in its own right) being used for public practices of surveillance of the high-rise apartments next-door, the platform had been a digital platform used for public surveillance by users of the platform taking advantage of the platform’s affordances, the various claimants’ objections to being subjected to the public gaze would have been viewed more sympathetically.

This is not to say that the interests of the Tate Modern and its visitors in noting the spectacle of the everyday lives of the rich people of London would not prevail on the balance. But it would be harder to argue that a digital platform’s owner had no responsibility for the ‘bad behaviour’ of those using the platform (beyond the admittedly ineffective means of posting notices on the platform about respecting privacy and instructions to security guards to stop people taking photographs). Similarly, it would be harder to resist the concerns raised by the women in this case about the effect of this behaviour for their children and grandchildren, now denied access to the exposed areas of the apartments and balconies (and query whether these concerns were just about sensitivity to being viewed or were also about safety when the viewing platform becomes a basis for surveillance photography with images posted on social media together with location data). As the judge put it, ‘the victim is expected to have to put up with some give and take appropriate to modern society and the locale’ – adding that, for those sensitive to privacy, they have at their disposal the options of curtains or blinds (or privacy film, planning law permitting). And, as to the interests of children growing up in a glass house, he noted that the law of nuisance on which the claims were founded is only available to homeowners: ‘Their privacy interests are part of the greater privacy interests of the parent owners, but do not add anything substantial to the latter’s significant interests’. Here, the law of nuisance seems still rather Victorian in its treatment of the concerns of mothers and grandmothers whose fears for the wellbeing of their children and grandchildren are so significant that they are kept away from areas exposed to public view (adopting more draconian measures than curtains or blinds).

Anita Allen writes about ‘unpopular privacy’, including in scenarios where privacy interests of minority figures may not have widespread popular support. I think that unpopular privacy may be a good label for what is going on in the Neo Bankside case. It is hard to be sympathetic to the plight of minority wealthy figures claiming their family privacy has been invaded when we see the glamorous lifestyles being exposed. And the fact that the claims were linked to ownership of some very expensive property did not help. Further, the fact that the children were carefully kept out of view meant they were not (as yet) particular subjects of voyeuristic scrutiny and photography. As to the Tate Modern, it effectively presented its platform as serving social and artistic values rather than operating on a business model intricately connected with and designed to foster the surveillance practices of its users. The case therefore could be distinguished from the case of Paul Weller and his wife objecting in the name of their children to photographs showing them out and about in Santa Monica posted on the Mail Online website for public scrutiny considered of no great social value, using the tort of misuse of private information. Legalities aside, however, I can’t see much real difference here.

Megan co-edited the Research Handbook on Intellectual Property in Media and Entertainment, published in 2017. More information on the book is available here.

Megan also has a forthcoming book titled Advanced Introduction to Privacy Law.