Richard Morgan reports on the lecture by Professor Daniel J Solove, Professor of Law at George Washington University Law School, at a joint SCL/Oxford Internet Institute Meeting on 25 June 2009
A startling figure to start with: there are an estimated 100 million Bloggers worldwide, of whom most are under the age of 19 – what Professor Solove calls ‘Generation Google’.
Professor Solove gave several examples of how the power of the Internet can bring unwanted publicity and worse to individuals. For example, the dog pooper of South Korea, who allowed her dog to poop on a subway train, failed to clean up, and endured worldwide humiliation; the Star Wars kid – a 15-year-old whose gauche cavortings with a golf ball retriever by way of a light sabre had him held up to ridicule across the world; the Washingtonienne who blogged about her sexual exploits with an identifiable lawyer and evaded litigation from her aggrieved partner only by pleading bankruptcy. Professor Solove made out a powerful case for considering how, once an adverse story – even one totally without foundation – gets on the web, it can do immense and apparently everlasting damage to the hapless victim.
So what if any protection should the law afford? Steering a course between libertarian do nothing and authoritarian censorship, Professor Solove opted for a Middle Ground Approach. Privacy should in defined circumstances be protected by the threat of an action in tort. He pointed out that both English and US privacy law stemmed from Prince Albert v Strange, but had diverged. US law considered anywhere which was not obviously private (such as one’s own home) to be public. Was this right? If I buy something at a pharmacy, although the shop is public, do I want everyone to know what I am buying? Professor Solove thought English and European law (Peck, von Hannover) were better in this area than US law.
He also thought copyright provided a model – not for a right of privacy as such, but as an illustration that it is not too late once something has got onto the web to endeavour to restrict its dissemination. Certainly one can sue under copyright and, where the occasion justifies this, under defamation too, after the word has got out. But it must be confessed that while some mouths can be stopped by the threat of such litigation, anyone who googles the name of a victim will still find the offending material – if not on a European or US site then one in some other jurisdiction. Try googling Loutchansky.
When asked how he thought any such beefed up privacy could protect against the estimated 50 million teenage bloggers in the world, Professor Solove thought that, whereas the first Generation Google’s parents had not understood the Web and so had not appreciated what their precocious offspring were up to, now parents would be increasingly more savvy and driven by a fear of litigation to attempt to police their children’s actions. One may wonder if that is really going to be enough.
Professor Solove managed to talk for about 40 minutes on privacy to an English audience without once mentioning data protection. Of course it doesn’t exist in the USA. Data protection provides only very limited scope for action by private individuals to protect their privacy – notably under s 13 - and as Dr Johnson (not that one, but Johnson v MDU) found out, bringing an action is not straightforward. Equally it avoids censorship as such. So does this provide a possible element for a Middle Ground Approach?
If you attended, let's hear your views on the Solove lecture. Did you feel he got it right?
A podcast of the lecture is expected to be available via this site shortly.
Richard Morgan is an independent IT Consultant and a Fellow of the British Computer Society. For many years he was Computer Officer at the two Houses of Parliament. He is a founder member and a past Chairman of the Society for Computers and Law. He is the author with Kit Burden of Legal Protection of Software: A Handbook (xpl publishing 2002), and also with Kit Burden of Morgan and Burden on Computer Contracts 8th edition (Sweet & Maxwell 2009), and with Ruth Boardman of Data Protection Strategy (Thomson/Sweet & Maxwell 2003).