Q&A: The right to privacy

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Gavin Phillipson is a professor of law at the University of Durham. He is also a qualified solicitor and a member of the Durham Human Rights Centre. His research interests lie in the fields of European and UK human rights law, in particular freedom of expression, privacy and counter-terrorism law.

In this Q&A he explains to BBC Religion and Ethics why we should have a right to privacy and what the future might hold for the balance between privacy and security.

How long ago did we acquire the right to privacy? When was it formalised?

In this country it would be only in the year 2000, the year in which the Human Rights Act came into force; it incorporated the European Convention on Human Rights, Article 8 of which protects the right to private and family life. That was the first time there was a generalised right to privacy recognised by law in this country.

Article 8: Right to privacy

  • (1) Everyone has the right for his private and family life, his home and his correspondence.
  • (2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

But there had before then been other areas of law which recognised it, such as property law, which recognises your interest in controlling your own physical space, your home, your ability to repel intruders and the law of trespass - they all recognise privacy rights.

Privacy also includes bodily integrity: so abortion rights, brought into this country in 1967 recognised one aspect of privacy, and various offences like rape and assault recognise your right to bodily integrity and not being interfered with or touched without your consent.

There has been protection for family life for a long time in law. But there never was until 2000 a general right to privacy; it was just a kind of piecemeal protection in that area given by a mixture of statute and common law. It was only in 2000 that we acquired a general right to privacy.

Why should we have this right?

There are many different justifications put forward. One view is that it's a 'right to be let alone' - in other words, human beings need a kind of sphere in which they're guaranteed to be free of interference or, indeed, surveillance by government.

And that's for a number of reasons: the development of intellectual faculties through reading, through private conversation, through writing privately, for example keeping a diary; the right to form intimate relationships - sexual relationships are obviously physically carried on in private spaces, without anyone else watching, but generally it's thought that intimate human relationships need privacy to flourish, and similarly with family life.

Another way of looking at is to say that you have a right as a human being to have some control over what type of information you choose to disclose to other people, and that when either the government or the mass media acquire information about you without your consent, and then publish that to the world or use it for their own purposes, that violates your autonomous right to control information about yourself.

A very popular line in the debate on the right to privacy is "If you've got nothing to hide you've got nothing to fear". What do you think of it?

Start Quote

Prof Gavin Phillipson

Everyone acknowledges we want to conceal many things, not because they're wrong, but because we think they're intrinsically private”

End Quote Gavin Phillipson Professor of law

People are not only upset and offended and violated when things that they've done wrong are disclosed to the world.

There are some things that people consider to be intrinsically private, for example a video of a married couple having sex. There's no conceivable moral wrong in that, but the fact is that, despite it not being anything wrong, they want it hidden in the sense that they don't want it to be seen by anyone else.

And similarly with many other private choices we make or private activities we undertake. It can be sometimes because they are controversial and we want to hide them from the eyes of people who may volubly disapprove of what we're doing.

Some gay people, for example, want to keep their orientation a secret in order to avoid public criticism and essentially to say "my sexuality is none of your business and I know that you may well make hurtful comments about it and frankly I don't want to give you that opportunity."

Everyone acknowledges we want to conceal many things, not because they're wrong, but because we think they're intrinsically private.

The concept of what's private and what's public shifts over time and some people blame reality TV shows and, generally, a kind of confessional culture for a shift away from privacy. Particularly, there's anxiety of young people growing up with social media in a world where they're perhaps not taught to value privacy.

They're perhaps taught that the important thing is to express yourself, often in very intimate areas of their life, by splashing details of their sexuality, or their struggles with body image or diet on social media to a very wide audience, which indicates a kind of shift away from the notion of privacy and individual dignity towards a notion that the most important thing is to express yourself and to acquire some kind of small celebrity, even within a small circle of friends who happen to 'follow' you.

There has certainly been a shift towards greater openness. Britain has traditionally been very buttoned up in anything to do with sex and nudity, with very strict obscenity and indecency laws and those have been very much more relaxed.

How has the balance between privacy and security changed in the past 40 years - in the UK and globally?

Your privacy online

I think there has been a rebalancing in favour of security. One of the main reasons is the technological advances that mean that we now put a lot of information through electronic communication, that we didn't do before there was email, search engines, social media, internet searches and so on. Now those search engines hold huge amounts of personal data about us all, which organs like GCHQ in this country and NSA in the US have the ability to tap.

Secondly, the impetus for such state agencies wanting to tap is the perception that we're at very serious risk from terrorism, particularly dating from 9/11 onwards, which has seen a massive ratcheting up of the state's anti-terrorism powers over citizens, of which a key one is surveillance and communications data retention.

The UK government has looked at what's called the "Snoopers' Charter", a requirement to retain the communications data of everyone for a set period, whereas at the moment there has to be targeted requests based on the suspicion about the risk posed by a particular individual. The proposal is to extend that to the communications data about everybody, which would be retained to look at if a need later arose.

If that makes its way onto the statute book, that would be another massive step away from privacy and towards the needs for security.

Are there any trends that indicate a further shift between privacy and security in the next 10 years or so?

Unless there's a marked diminution in the terrorist threat, or at least how governments perceive it, the shift appears to be towards security and the "Snooper's Charter" would be the biggest example of that.

It has to be said that a major area of pushback is European Union law. Our contemporary data protection law comes from the EU data protection directive and the European Union is actually drafting new data protection laws which in some way will be stricter. I think the European Union Law remains the biggest source of pushback against privacy in terms of giving us control over our personal data.

Obviously, if Britain were to leave the European Union so that no longer needed to follow those laws that could be an enormous shift away from privacy protection. I presume we'd have to introduce some domestic data protection rules but they probably wouldn't be as rigorous as those we inherited from the European Union.

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