The distinction between public & private

The law tends to treat information in only two ways: either as public or as private.

But is the public / private dichotomy also a false dichotomy?

The dichotomy is challenged by Nissenbaum’s theory of contextual integrity

Is the public/private distinction a quaint norm from an irrelevant past? (Showers, Dawsonera 2015)

Many younger internet users see things in a far more nuanced way than simply in terms of public versus private, where these things are multiple and overlapping

One might, for example, restrict access and visibility to families, to friends or to employers

It isn’t as straightforward as information being either public or private, or indeed coming up with a third category of “semi-public” without going on to develop these concepts further.

The lines between these designations are at times blurred, mutable, even non-existent on occasion

Technology (such as data mining etc) creates interconnections with what were formerly separate spaces

Is the information restricted by technological features?

  • Passwords
  • Privacy settings
  • etc

Where there are barriers to access, the very existence of barriers communicates to those with the right credentials that there is a desire for or an expectation of privacy.

Solove (2004) argues that the secrecy paradigm “fails to recognise that individuals want to keep things private from some people but not from others”.

The two privacy torts that are most relevant to the public/private distinction are:

  1. Public disclosure of private facts (which limits liability to defendants who publicize information that is private, not of legitimate public concern and which is disseminated in a highly offensive manner)
  2. Intrusion upon seclusion

When can a plaintiff reasonably expect information about himself to remain “private” after he has shared it with one or more person?

A workable definition of online obscurity is needed.

REFERENCES

SHOWERS, B. and DAWSONERA, 2015. Library analytics and metrics: using data to drive decisions and services. London: Facet Publishing.

SOLOVE, D.J., 2004. The digital person: Technology and privacy in the information age. NyU Press.

 

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