There has been a good deal of chatter lately about the Law Commission's paper on possible reforms to liquor laws – rather less on another LawComm paper – a Review of the Privacy Act 1993.
Indeed, it appears that a rev-up in last week's email newsletter from marketing expert Michael Carney is the first that many potentially affected parties will have heard of a discussion that cuts to the quick of what we think the internet is for, and how the law should apply.
In particular, the Commission focuses on the "deceptively short and simple" Section 56 of the Act, which provides that:
Nothing in the information privacy principles applies in respect of—
(a) The collection of personal information by an agency that is an individual; or (b) Personal information that is held by an agency that is an individual,—
where that personal information is collected or held by that individual solely or principally for the purposes of, or in connection with, that individual’s personal, family, or household affairs.
To routinely apply the Privacy Act to "everyday domestic activities such as taking photographs of friends and family or keeping records of family expenditure and activities," would be "both impractical and intrusive into people’s personal and domestic lives," the Review observes.
It then offers several scenarios where the line is not so clear:
• A and B have been in a sexual relationship, in the course of which A has taken intimate photographs of B with her consent. When the relationship breaks up, A posts these photos on a publicly-accessible website without B’s consent.
• C and D are university students who attend a wild party. C takes photographs of the party, which she puts on her page on a social networking site. One of the photographs shows D in a drunken and undignified state. The photographs are later seen by a prospective employer, and D is not employed as a result.
• E writes a blog, much of which is concerned with her everyday life and her interactions with friends and family. She mentions in the blog that a friend is having an affair. Although she does not name the friend, his identity is apparent from the context to those who know him.
In each of these cases, it is likely that the individual who has (arguably) breached another person’s privacy could successfully use the section 56 exemption.
And muses on the way that the personal and private have become public:
Each of these scenarios also involves information being made available online. Although the issues concerning section 56 do not arise only from the internet, the internet does create new problems when material relating to “personal, family or household affairs” is made available to a much wider audience. It is arguable that making the material more widely available by placing it on the internet takes it out of the personal, family or household sphere, but this is by no means clear, particularly if access to the site in question is restricted to some degree. For an increasing number of people, websites are the modern equivalents of diaries or family photo albums.
The Review also weighs up the extent to which bloggers and the like should be able to enjoy the exemptions to the Act offers to news media. If so, how are news media defined and what obligations should be required of them?
There is another key reason that the personal has become public online – and that's because it's easier to monetise. That's why Facebook is always pushing to reveal more of yourself. It's just more data to mine; more content to place advertising against. In return, we get amazing free services. So how to strike the bargain?
In the way these things have of converging, New Zealand was (via our Privacy Commissioner, Marie Shroff) one of nine countries to sign a letter to Google expressing concern that:
… too often, the privacy rights of the world’s citizens are being forgotten as Google rolls out new technological applications. We were disturbed by your recent rollout of the Google Buzz social networking application, which betrayed a disappointing disregard for fundamental privacy norms and laws. Moreover, this was not the first time you have failed to take adequate account of privacy considerations when launching new services.
The government most interested in seeing its citizens' private communications is Britain. And the odd one out is New Zealand, with "less than 10 removal requests" made (the ungrammatical lowest tier in Google's schema), no removal requests complied with – and no requests for citizens' private data at all.
On a less lofty level, Bill Ralston has been complaining on Twitter:
How do I stop some sad lonesome fat slug reading my tweets and then reprinting them in a gossip column? Should I bother deTweeting her?
Weird thing is I've never been anything but friendly to the slug. Even invited it into my home. Goes to show we all have lapses in judgement.
And that's not even getting into Carney's commentary on the possible regulation of data collection and behavioural targeting practices by online advertisers.
There is, as Henry Rollins says, a lot to remark on. And I'll have my head down working through it all for this week's Media7, which will feature Carney, lawyer Rick Shera and unrepentant over-sharer Deborah Hill Cone.
If you'd like to join us in the audience, we'll need you at TVNZ from about 5pm. Click Reply to let me know you're coming.