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Exposure Draft of 4 August 2014
with minor revisions on 21 August 2014
Invited Presentation at the Australian Human Rights Commission Symposium on Free Speech, Sydney, 7 August 2014
Roger Clarke **
© Xamax Consultancy Pty Ltd, 2014
Available under an AEShareNet licence or a Creative Commons licence.
This document is at http://www.rogerclarke.com/DV/PFS-1408.html
The supporting slide-set is at http://www.rogerclarke.com/DV/PFS-1408.pdf
Free speech is a cornerstone of democracy. So is privacy. Achieving balance between these competing interests is challenging, but it's important.
Adequate protection of privacy of the physical person and of the privacy of personal behaviour depends upon intimidation, incitement to violence and incitement to hatred being subjected to controls. This necessarily impinges upon freedom of speech. On the other hand, criticism, insults and demeaning speech are a matter of manners. Social controls and 'calming influences' are needed, but there's insufficient justification for such actions to be subject to formal legal constraints.
The current debate needs further refinement, firstly in order to ensure that what constitutes intimidation and incitement is appropriate and clear, secondly to ensure that the saving provisions do not undermine the intent, and thirdly to ensure that intimidation and incitement are unlawful, not only in the context of racial discrimination, but also more generally.
Privacy is a human right. When conducting policy analysis, however, it has proven to be much more convenient to define it as an interest (Morison 1973):
Privacy is the interest that individuals have
in sustaining a 'personal space'
free from interference by other people and organisations
This underlines the fact that privacy is one interest among many. Hence all privacy protections are an exercise in balance among multiple considerations. There are no 'privacy absolutists'; it's all relative.
The human need for privacy has multiple dimensions (Clarke 1997, 2006), summarised in Exhibit 1. Despite its allegedly recent origin as a preoccupation of well-off societies, all of these dimensions are readily recognisable even in the UDHR (1948) and ICCPR (1966).
The deepest-seated need is for privacy of the physical person, which is addressed by a large number of Articles in ICCPR. It's useful to distinguish four further dimensions. Surveillance, whether it is conducted in a physical manner (using the eyes and ears of humans), aided by technologies (such as directional microphones and recording apparatus), or entirely automatically, threatens the privacy of personal behaviour and thereby constrains how people act. Covert surveillance causes many people to have a generalised fear of the 'pan-optic', which has an even more substantial impact on their freedom of behaviour. This 'chilling effect' ranges from being highly desirable (where it creates a disincentive for criminal, sociopathic or psychopathic behaviour) to highly undesirable (where it reduces artistic creativity, scientific and engineering inventiveness, economic innovation or political speech).
Since at least the early days of the telegraph in the 1840s, messages have been subjected to interception. Moreover, unlike earlier forms of surveillance, electronic interception is usually conducted covertly. Recent decades have seen invasions of the privacy of human communications reach epidemic proportions. Since the application of computing technologies to administrative data in the 1960s, the privacy of personal data has also been subject to a rapidly-rising crescendo of threats (Clarke 1988). During the 1970s, business and government moved to defuse public concerns by creating a chimera rather than a shield. The real function of 'data protection' laws is to authorise privacy-invasive behaviours by organisations while offering the appearance of a regulatory framework.
The early years of the current century have seen technological change that embodies serious threats to a further dimension of human concerns. What an individual reads and views, and the ideas that they gain access to through meetings and other events, have been converted from unrecorded ephemera to stored data. That data is under the control of and exploitable by for-profit corporations, and available to government agencies. The privacy of personal thought may not yet be directly under assault, but the privacy of personal experience is a dangerously close proxy for it.
In 1986, the four higher-level dimensions of privacy were referred to by Health Minister Neal Blewett, while he was championing the Australia Card, as 'a bourgeois right' (Clarke 1987). It is certainly the case that a person who is in danger, wet and cold, or seriously hungry, does not have the luxury of worrying about needs higher up the Maslowian hierarchy. On the other hand, people in many societies enjoy pleasant living conditions, and place considerable value on these dimensions of their privacy, for psychological, social, economic and political reasons.
Privacy and freedom of speech are both addressed in the ICCPR. Article 19 refers to the right to hold opinions without interference, to freedom of expression, and to freedom to impart information and ideas.
Privacy and free speech are inter-dependent, but each is also threatening to the other.
Speech acts that create discomfort for the powerful create risks for the person who utters them. For example, journalists seek to protect their sources of information, because without effective protections for whistleblowers the flow of information will dry up, and hypocrisy and corruption will continue to flourish. In the political context, Clarke (2008) coined the term 'dissidentity' as a means of drawing attention to the importance of identity protections for political dissidents: "The survival of free societies is dependent on the rights to multiple identities and nymity becoming engrained, as insurance against abuse of the powers enjoyed by governments and corporations".
In closed societies that are dominated by authoritarianism or collectivism, gross compromises to privacy are common, including to privacy of the physical person. On the other hand, in societies in which openness, individualism and self-determination are highly-valued - which are commonly liberal democracies - privacy tends to be less compromised. Freedom of speech is a cornerstone of such societies, and a precondition for achieving and sustaining reasonable levels of privacy and of privacy protections.
Many circumstances arise, however, in which the exercise of the freedom of speech collides with the privacy interest. There are many categories of persons at risk. Disclosure of the location of a victim of domestic abuse, or of a parallel social network of a person in whom group trust is vested, or of the identity of an undercover operative planted in an illicit drug ring, represents a serious threat to that individual's safety. Whistleblowing on serious misbehaviour by intelligence agencies has proven to be essential to addressing serious subversion within democracies; but unless the leaks are edited they may cost lives.
Many disclosures of personal data are less dramatic than this, in that they do not give rise to risks to personal safety. Nonetheless, the privacy of personal communications and data is very important to many people. A person's drink-driving conviction, their genetic predisposition to epilepsy, their big win in a lottery, and the valuable art-work on the wall of their unguarded house, may be disclosed because of some important public interest. But mostly no such countervailing interest exists, and the exercise of freedom of speech is unjustifiably harmful to the individual's interests.
The privacy of personal behaviour may also be negatively impacted by speech acts. A person who is subject to an accusation of paedophilia, or of fraternisation with a criminal, or of mysogyny, of a racist attitude, or even of undeclared homosexuality, infidelity or promiscuity, may find it highly advisable to lie low and avoid public appearances generally, or for a period of time, or in particular places. Other aspects of behavioural privacy may also be affected, such as the interest in associations with other people. In all such cases, freedom of speech may be, and may need to be, compromised, in the interests of the privacy of affected individuals.
Where exercise of the right to freedom of speech may harm privacy, there are naturally calls for restraints on that freedom. The examples provided in the previous section were selected so as to highlight instances in which the appropriate balance-point is readily argued to be in favour of privacy. Clearly, there are also many instances in which the reverse is true. For example, disclosure to an employer, a licensing agency or an investigative agency of a person's medical conditions, assets or actions may be critical to public safety or the pursuit of justice.
The Australian Privacy Foundation (APF) has proposed that judgements about disclosures that are and are not in the public interest are capable of being supported by robust guideines (APF 2009). Specifically the APF proposed that:
Although framed so as to address publication by 'the media', consideration was also given to the democratisation of publishing channels and the emergence of less formal media. The rapidity of that change over the last five years is such that a general framework of this kind is urgently needed. It is in the interests neither of individuals nor society as a whole for the means of balancing privacy and freedom of speech to continue to be treated as though it were an ineffable art-form.
A particular cluster of issues stimulated this 'Free Speech' event. Since 1995, the Racial Discrimination Act (Cth) has declared as unlawful public actions that constitute "offensive behaviour because of race, colour or national or ethnic origin". The awkward grammar of that expression is symbolic of the uncertainties that surround the provisions' implementation.
Under s.18C, it is unlawful, "otherwise than in private", to "offend, insult, humiliate or intimidate ... because of ... race, colour or national or ethnic origin". This is, however, subject to subject to saving provisions in s.18D, which spare artistic works, "any genuine purpose in the public interest", fair and accurate reporting of any event or matter of public interest, and 'fair comment expressing a genuine belief'. These saving provisions are quite broad, and feature the loose defence of 'of public interest' rather than the much stricter and appropriate test of 'in the public interest'.
The Attorney-General has proposed amendments, comprising:
Applying the definition and dimensions of privacy outlined above, I draw the following inferences:
From a privacy perspective, adjustment of the existing provisions by removing "offend" and "insult" from the list of unlawful acts is uncontroversial. However, it is vital that there be legal sanctions against 'intimidation', incitement of hatred, and incitement to violence. The proposed interpretation and saving provisions are far too permissive and require substantial re-working. Examples of tests that need to be applied include whether sustained verbal attacks represent intimidation, whether goading a person into performing physical assault is or should be unlawful conduct, and whether harassment or stalking are more appropriate models to apply.
In all cases, it is vital that a suitable balance between privacy and freedom of speech is achieved. It appears to be entirely feasible to formulate definitions of intimidation, incitement of hatred and incitement to violence, and indeed of stalking and harassment, that sustain the most crucial aspects of freedom of speech - the ability of both formal and informal media to investigate and report on the many forms of individual, group, corporate and governmental misbehaviour.
It would appear to be entirely feasible to achieve a reasonably balanced outcome either by amending the existing ss.18C and 18D, or by replacing them. This does, however, raise questions as to what other laws currently exist in these areas, and whether racial discrimination is the only context in which such behaviour needs to be declared unlawful.
The discussion to date has been largely conducted at a level of abstraction that is too far removed from the daily experiences of people whose privacy is harmed by unreasonable use of the freedom of speech. The debate would benefit greatly if it were now shifted, from polite discussion amongst the invited few, to workshops that include representatives of categories of people affected by unreasonable behaviours and that consider concrete examples against which the alternative definitions and saving provisions can be assessed.
APF (2009) 'Privacy and the Media' Policy Statement, Australian Privacy Foundation, March 2009, at http://www.privacy.org.au/Papers/PS-Media.html
APF (2013) 'Meta-Principles for Privacy Protection' Policy Statement, Australian Privacy Foundation, March 2013, at http://www.privacy.org.au/Papers/PS-MetaP.html
Clarke R. (1987) 'Just Another Piece of Plastic for your Wallet: The 'Australia Card' Scheme' Prometheus 5,1 (June 1987), PrePrint at http://www.rogerclarke.com/DV/OzCard.html
Clarke R. (1988) 'Information Technology and Dataveillance' Commun. ACM 31,5 (May 1988), at http://www.rogerclarke.com/DV/CACM88.html
Clarke R. (1997) 'Introduction to Dataveillance and Information Privacy, and Definitions of Terms' Xamax Consultancy Pty Ltd, August 1997, at http://www.rogerclarke.com/DV/Intro.html
Clarke R. (2006) 'What's 'Privacy?' Xamax Consultancy Pty Ltd, August 2006, at http://www.rogerclarke.com/DV/Privacy.html
Clarke R. (2008) 'Dissidentity: The Political Dimension of Identity and Privacy' Identity in the Information Society 1, 1 (December, 2008) 221-228, at DOI 10.1007/s12394-009-0013-7, PrePrint at http://www.rogerclarke.com/DV/Dissidentity.html
ICCPR (1996) 'International Covenant on Civil and Political Rights' United Nations, 1966, at http://treaties.un.org/doc/Publication/UNTS/Volume%20999/volume-999-I-14668-English.pdf
Morison W.L. (1973) 'Report on the Law of Privacy' Government Printer, Sydney, 1973
UDHR (1948) 'Universal Declaration of Human Rights' United Nations, 10 December 1948, at http://www.un.org/en/documents/udhr/index.shtml
Roger Clarke is Principal of Xamax Consultancy Pty Ltd, Canberra. He is also a Visiting Professor in the Cyberspace Law & Policy Centre at the University of N.S.W., and a Visiting Professor in the Research School of Computer Science at the Australian National University.
He is a longstanding Board member of the Australian Privacy Foundation, and has served as its Chair 2006-14.
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This document is at www.rogerclarke.com/DV/PFS-1408.html