Balancing Privacy and Free Speech

Unwanted Attention in the Age of Social Media

Mark Tunick

• Publisher: Routledge
• Year: 2014
• ISBN:
  9781317650362
• Edition: 1
• Topic: Derecho
• Subtopic: Derecho científico y tecnológico

In an age of smartphones, Facebook and YouTube, privacy may seem to be a norm of the past. This book addresses ethical and legal questions that arise when media technologies are used to give individuals unwanted attention. Drawing from a broad range of cases within the US, UK, Australia, Europe, and elsewhere, Mark Tunick asks whether privacy interests can ever be weightier than society's interest in free speech and access to information.

Taking a comparative and interdisciplinary approach, and drawing on the work of political theorist Jeremy Waldron concerning toleration, the book argues that we can still have a legitimate interest in controlling the extent to which information about us is disseminated. The book begins by exploring why privacy and free speech are valuable, before developing a framework for weighing these conflicting values. By taking up key cases in the US and Europe, and the debate about a 'right to be forgotten', Tunick discusses the potential costs of limiting free speech, and points to legal remedies and other ways to develop new social attitudes to privacy in an age of instant information sharing.

This book will be of great interest to students of privacy law, legal ethics, internet governance and media law in general.

1 Introduction

DOI: 10.4324/9781315763132-1

Unwanted attention

In between pitches during a major league baseball game, Fox Sports Network television cameras focused in on a portly man, one of about 15,000 fans in the stadium, showing him intently eating a salad as one of the Fox announcers remarked, with a chuckle, “Salad won’t be enough for this guy!”

The fan may never have learned that he was on television; if he had, he might not have cared. Yet a case might be made that Fox Sports Network acted badly: that it invaded his privacy—his right to be left alone and not be thrust into the public eye and publicly humiliated—by giving him attention that one might assume was unwelcome. On the other hand, can anyone reasonably expect privacy while attending a public sporting event in plain view of thousands? Did the baseball fan not consent to the possibility that he would appear on television simply by being in a public place in plain view of others?

This is one of an exploding number of examples of potentially unwelcome attention in which the interest in gathering and disseminating information, protected in the United States by the First Amendment rights of free speech and a free press, and in the European Union by the right of freedom of expression laid out in Article 10 of the European Convention on Human Rights (ECHR), may conflict with an interest in privacy. Unlike the baseball fan, those receiving unwanted attention in some of these cases clearly suffer severe consequences:

Rutgers college student Tyler Clementi did not welcome the attention when his roommate secretly captured video of Tyler kissing another man in their dormitory room and shared the video with others. Soon after, Tyler committed suicide by jumping off a bridge.¹

1 John Schwartz, “Bullying, Suicide, Punishment,” New York Times, October 2, 2010.

Texas assistant district attorney Louis Conradt did not welcome the attention when a SWAT team entered his home in the company of camera crews from NBC’s program “To Catch a Predator.” Conradt had apparently engaged in sexually explicit online chat with a decoy posing as an underage teen. He had turned down the decoy’s offer to meet her in person, so instead NBC came to him. Unable to face the public shame of being accused of being a child predator before a national television audience, he shot and killed himself.²

2 See Mark Tunick, “Reality TV and the Entrapment of Predators,” in Robson and Silbey, eds., Law and Justice on the Small Screen (Oxford: Hart Publishing, 2012).

Marvin Briscoe did not welcome the attention when Reader’s Digest published a story about hijacking that disclosed his name and the fact that he committed a crime twelve years before, a crime for which he had already received his punishment and which he had tried to put behind him. Because of the article, Briscoe’s daughter and friends found out about his past crime, which he had kept a secret, and abandoned him.³

3 Briscoe v. Readers Digest Assn., 4 Cal.3d 529 (1971).

Police have not welcomed the attention when citizens secretly recorded them making traffic stops or arrests. Some of these citizens were subsequently charged with violating anti-wiretap laws or interfering with police business.⁴ Nor did a married man welcome the attention when CBS filmed him walking down a street hand in hand with a female co-worker who was not his wife as part of a story about romance in New York City.⁵

4 See Commonwealth v. Hyde, 434 Mass. 594 (2001); Commonwealth v. Manzelli, 864 N.E.2d 566 (2007); and Dana Mishra, “Undermining Excessive Privacy for Police: Citizen Tape Recording,” Yale Law Journal 117:1549–1558 (2008). 5 DeGregorio v. CBS, 473 N.Y.S.2d 922 (1984).

In each of these cases, there is a conflict between those who want to gather and disseminate information and those who do not welcome the attention. While each of these cases is from the United States, unwanted attention is a global phenomenon. In Kenya, for example, viewers of a show entitled “Road Hog” that is part of a primetime news program on CitizenTV are encouraged to submit videos of bad drivers. The producers air the video, zoom in on the vehicle’s license plate number, and broadcast the name of the owner as a chorus shouts “Ahhhh … Shame on You!”⁶

6 I thank Mumbi Ngugi for making me aware of this program.

The democratization of the media

Some of the above examples involve traditional media, which include newspapers, magazines, and television. But over the last several years the likelihood of receiving unwanted attention has risen dramatically because of the proliferation of new technologies such as smartphones and the widespread use of Internet video-hosting services and social media such as social networking sites and weblogs. As a result, information that the traditional media exposed in an original broadcast or publication—information that in the past might have been soon forgotten— can now be archived and readily accessible years later. Episodes of “To Catch a Predator” that were first broadcast in the early 2000s are available on NBC’s website, and video clips from “Road Hog” are available on YouTube.⁷ But another, distinct feature of the age of social media is that anyone and not just the news and entertainment media can now broadly disseminate information. Individuals use the Internet and social media to accuse people of a wide range of uncivil behavior and in some cases to seek out and punish them.⁸ Disgruntled clients used one U.K. website to name and shame solicitors with whom they were dissatisfied, until a court ordered that the website, called “Solicitors from Hell,” be taken down.⁹ Some websites display mugshots of individuals who have been convicted of a sexual offense, or of driving under the influence, or who were merely arrested but not yet convicted.¹⁰ Sometimes information is shared with an intent to be punitive, as when individuals use “revenge porn” websites or Twitter to share naked pictures of people they once dated.¹¹ But sometimes it may be shared with the best of intentions, as when a catechist in a Swedish parish set up a website to share information with parishioners, and revealed that a colleague had a foot injury—information that the court in Sweden regarded as protected personal data.¹² In one case that received considerable press, a Korean woman refused to pick up the mess that her dog left in the middle of a subway car, and someone shared a photo of the incident through social media. Some individuals who viewed the photo identified and shared details about her and as a result she received threats, was publicly humiliated, and reportedly left her university.¹³ To anyone who looks at her with Google Glass with face recognition she will be known as “Dog Poop Girl.” (Google Glass enables one to access information about objects in one’s sight;¹⁴ it is a technology with significant implications for privacy that I will discuss in later chapters.)

Unlike in any previous period in human history, virtually any individual can now cast unwanted attention on someone by making their image or information about them readily accessible to millions of people. Over 2.4 billion people around the world use the Internet on any given day;¹⁵ and by one estimate 1 billion people will have smart phones by 2016 and therefore the ability to easily capture images and share them on the Internet.¹⁶ YouTube reports that there have been over 1 trillion playbacks of user-uploaded videos from its website as of 2012 and that 100 hours of video is uploaded to its site every minute, which is nearly three times the number of hours of video uploaded per minute that it reported in 2011.¹⁷ The boundaries that distinguish journalists from ordinary people are becoming blurred, with some self-proclaimed citizen watchdogs taking on the role of “citizen journalist.”¹⁸

7 See www.nbcnews.com/id/10912603/; www.YouTube.com/watch?v=K9HvhmKWc8Y. “Road Hog” also has its own Twitter page: https://twitter.com/CitizenRoadHog. 8 See Daniel Solove, The Future of Reputation (New Haven: Yale University Press, 2007), Chapter 4; and Tom Downey, “China’s Cyberposse,” New York Times Magazine, March 3, 2010 (on “human flesh search”). 9 The Law Society v. Kordowski [2011] EWHC 3185. 10 See, e.g., www.mugshotsonline.com; www.azduimugshots.com; http://offender.fdle.state.fl.us. 11 See www.myex.com/ ; and www.womenagainstrevengeporn.com/ (both accessed February 27, 2014). Cf. Oren Yaniv, “Judge Dismisses Case against Brooklyn Man Who Shared Nude Photos of [Ex-] girlfriend on his Twitter Account,” New York Daily News, February 19, 2014. 12 Criminal Proceedings against Bodil Linqvist, Case C-101/01 (Sweden, 2002); online at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62001J0101:EN:HTML. 13 Jonathan Krim, “Subway Fracas Escalates Into Test of the Internet’s Power to Shame,” Washington Post, July 7, 2005. Cf. Solove, The Future of Reputation, pp. 1–4. 14 See www.google.com/glass/start/, accessed December 21, 2013. 15 Internetworldstats.com, accessed January 10, 2013. The figure is for internet usage on June 30, 2012. 16 Zack Whittaker, “One Billion Smartphones by 2016, says Forrester,” zdnet.com, February 13, 2013. 17 www.YouTube.com/t/press_statistics, accessed January 7, 2013, December 24, 2013, and June 7, 2011. 18 See Anderson, “The Mythical Right to Obscurity,” I/S 7:544-602 (2012), p. 552, citing Krim, “Subway Fracas Escalates.”

We might refer to this phenomenon as the democratization of the media. Prior to the age of social media, it took considerable resources to convey information to a broad audience beyond the circle of one’s friends, family, and coworkers, and the obstacles to publishing served as a check on those who might otherwise act impulsively. But today’s technology makes it possible for anyone to share information widely with a click of a button and little incentive to think about the implications. The unintended consequences of sharing information through social media have included the downfall of politicians, as when New York Representative Anthony Weiner used Facebook and Twitter to send promiscuous text messages and risqué photos of himself to women not his wife. This material got into the hands of a conservative web blogger and quickly went viral, creating national headlines and possibly ruining his political career.¹⁹ Online postings similarly led to the downfall of a German state legislator and a Chinese official.²⁰

19 Raymond Hernandez, “Weiner Resigns in Chaotic Final Scene,” New York Times, June 17, 2011. The threat to his career might have arisen also from his originally lying by denying what he did; see Michael Barbaro and David Chen, “Weiner Faces Calls to Resign and Tries to Make Amends,” New York Times, June 7, 2011. Weiner unsuccessfully reentered the race for mayor of New York in the summer of 2013. 20 Nicholas Kulish, “Affair with Teenage Girl and Facebook Postings Sink German Politician,” New York Times, August 18, 2011; and Andrew Jacobs, “Web Tell-All on an Affair Brings Down a Chinese Official,” New York Times, January 19, 2013.

The democratization of the media has been associated with profound social changes. Some suggest that the new social media dulls us by having us communicate in short snippets with the result that our attention span is shortened and we form snap judgments that distort the truth.²¹ Others point to its benefits. Some have suggested that the use of Facebook and Twitter to organize political protests contributed to the resignation of Egypt’s President Mubarak in 2011.²² Non-journalists have captured images of the police beat down of Rodney King in 1991, the devastating Asian tsunami of 2004, and abuses at the Abu Ghraib prison facility in Iraq.²³ A Craigslist ad and Facebook postings reportedly helped lead to the capture of a suspect in an attempted car bombing in New York City’s Times Square.²⁴

21 Bill Keller, “The Twitter Trap,” New York Times, May 18, 2011. 22 Jennifer Preston, “Movement Began with Outrage and a Facebook Page That Gave It an Outlet,” New York Times, February 5, 2011; cf. Emily Parker, Now I know Who My Comrades Are (New York: Farrar, Straus and Giroux, 2014), pp. 1–5. For a contrary view, see Evgeny Morozov, The Net Delusion (New York: Public Affairs, 2012). 23 Seth Kreimer, “Pervasive Image Capture and the First Amendment: Memory, Discourse, and the Right to Record,” University of Pennsylvania Law Review 159(2):335–409 (2011), pp. 347–50. See also “Visibility Before All,” Economist, January 14–20, 2012, pp. 58–59. 24 See Bianca Bosker, “Faisal S...