Sunday, 5 June 2016

Where Does Privacy End And Free Speech Begin?

Personal privacy, by Wendy Cockcroft
I've been wrestling with the idea of the expectation of privacy for many years. It seems that we civilians have a double standard; privacy for me, but if you're a celebrity, none for thee, particularly if it's juicy. We need to talk about this in the light of the surveillance debate and the risks to freedom of speech if we push too hard in the opposite direction.

In my last post, Honey, I Started A War, I discussed the 'giants in the playground' effect that occurs when other people make decisions about things that affect you but don't give a rats about who gets hurt and any harm that is done is written off as collateral damage.

Celebrities: when your private life is made public

Many of us have that self-same laissez-faire attitude to the privacy of celebrities; apparently, since they're always looking for attention we're giving them some, so what's the problem? Well they're human. And every human being needs privacy in their everyday lives because we all hate people passing judgement on our every word and deed.


Most pernicious are the paparazzi, who follow famous people around hoping to catch them running to the corner shop in their pajamas, or taking their kids to school sans makeup. You can't have a normal life when every aspect of it, from your lumps and bumps to your love life is held up to public scrutiny. Is it any wonder they turn to self-destructive behaviours in order to escape the feeling of being in a goldfish bowl, if only for a moment? I've seen some people say that if they can't handle it they shouldn't seek publicity in the first place, but who can actually handle it? The truth is you need to find a balance between being able to get work in your field because people have actually heard of you and being able to slip into the background when you're not at work. The people who achieve this tend to last in their trades.

As anyone will tell you the trouble is that people want this; it's a demand-side issue. Okay, fine, but the purchase of photos of 'Er Off The Telly isn't up to Josephine Punter, it's an editorial choice. And with photos being paid for in the tens of thousands you'd better believe that paparazzi are going to take that snap even if it puts themselves and their targets at risk. While editors are apparently holding back these days on taking in "unethical" photos, the risk for them is that if they don't publish a pic of the Duchess of Cambridge sunbathing topless, someone else will. And if punters are more likely to pay for the rag with the photo of the Royal babe with her boobs out, what choice do they have? 

Public figure/public property

Being a celebrity means that you've come to the attention of the public, either as an entertainer, because you've been part of a media event, or because you're a public servant or politician. The trouble with this is that people tend to see them as property:

But scandal functions as an ideological wedge, compromising and interrogating our understandings of what it means to be “good” or “bad,” happy or married or sexual. By providing a way to map our anxieties onto celebrity bodies, this type of gossip can make the unspeakable speakable  — an avenue, in other words, for us to talk about how we feel about gender performance, same-sex marriage, and dozens of other difficult topics. Sometimes that talk is regressive, homophobic, and reactionary, but it can also provide a way of thinking through what a different way of being in the world might actually look like. - How the No-Kids Paparazzi Policy Could Change Celebrity Gossip - Pacific Standard

That sounds reasonable enough until you see the films and programs that some of the celebrities act in, or the causes they campaign for. At this point, the argument is rendered moot; we can have these discussions without invading people's privacy.

No one wants a world of predatory paparazzi, but highly curated and regulated celebrity isn’t just boring — it turns us away from the complexities of everyday life. The world is complicated, messy, imperfect, and contradictory, and if we want our celebrities to function as progressive forces, then they must be as well. - How the No-Kids Paparazzi Policy Could Change Celebrity Gossip - Pacific Standard

Oh, come on, really? This is a liberal, progressive authoritarian (yes, they exist) point of view. Conservatives like me are appalled at the very idea. Freedom means being able to make your own choices, not having them made for you, and not being obliged to promote someone else's agenda if you don't want to. In my opinion, celebrities function as actors, singers, politicians, and whatever, and they're entitled to days off for rest and recreation, and privacy in the enjoyment thereof.

Public figure, public interest

There's nothing like a bit of juicy celebrity gossip. Sexual shenanigans e.g. sex videos and three-ways are a favourite with the gutter press. In some cases, the celebrities appear to be only pretending to be upset about the scandal (Paris Hilton made several sex tapes) since the resultant publicity can bring them to public attention, thereby boosting their careers. In others, celebrities risk losing social standing if word of their antics gets out, particularly if they've been cultivating a certain public image in which an all-male sausage sandwich doesn't have a role. Then there's Hulk Hogan, who talks about church one minute, then merrily makes the beast with two backs with his former BFF's wife the next. The question to be asked here is, what public interest is served by publishing these stories apart from, "He did what? Yuck. Then what did he do?"

Well we can argue that it lifts the lid on the lifestyles of the privileged so they can't defraud us with the pretense of living quiet, respectable lives, but that implies that they are obliged to live quiet, respectable lives. Let's flip this around: do people have the right to be rampant perves, etc., in their own time while they're off duty, as it were? It's harder to argue in favour that when they're being preachy about traditional family values; this pretty much demands that we catch them with their trousers down and point and laugh at their exposure. But when they're not, what then?

Your freedom ends where mine begins

Do celebrities lose the right to privacy via celebrity itself or do they lose it the minute they step out of the bounds of expected behaviour? Who has the right to set and maintain those bounds? It's an issue we'll always have to wrestle with given that it can and does impinge on our freedom of speech. Lawyer and blogger Marc Randazza argues for privacy, and effectively the right to respectability in his post on CNN:

It is true that outside litigation financing might have been wrong at one time, but it has become normal. Are Thiel's actions ushering in a new era of censorship? I think not any worse than we've suffered already.

Gawker is the media, and thus I reflexively find myself defending it. But, when we look at what got Gawker here in the first place -- outing a man who hadn't yet decided to come out, posting a sex tape, we perhaps realize that maybe the real fight here is about privacy, and not freedom of the press.

Of course, in the end, maybe the press suffers. But are its wounds really received in an honorable battle? Gawker is not publishing the Pentagon Papers or the Panama Papers. Gawker is not speaking truth to power. Gawker is doing what its name suggests. - Is Peter Thiel right about Gawker? By Marc Randazza for CNN

Marc Randazza has often been at odds, it seems, with the idea of freedom of speech, particularly where his views on the right to be forgotten and the boundaries of the freedom of the press media is concerned, but it all makes perfect sense when you stop thinking of his record in such black and white terms and examine the nuances of the debate.

Gossip for fun and profit V personal privacy

"The public has a right to know" is a well-worn media trope, but can the public actually benefit from watching Hulk Hogan do another man's wife? Okay, I'll play Devil's Advocate for a minute. We learn that Hulk is Only Human, that he has real-life problems just like we do, which enables us to sympathise with him in his plight with regard to his marriage, his family, and his career. The macho element of our society crows about his romp cavorting conquest activities, comparing his performance with their expectations of him and of themselves. If he compares favourably, no harm done, right? And just in case you were at risk of idolising this man to the point where you believed he was a hero who could do no wrong, it turns out he's a bit of a racist. Well now that we know this we can educate him into changing his bad attitude, right?

Okay, flip it over now: anyone who thinks that Hogan is anything other than a persona created by one Terry Bollea for the purpose of entertaining the masses via staged wrestling matches needs their heads read, stat. I'll help you pack. Celebrities are held so closely up to scrutiny they have little choice but to pretend to be noble, heroic, decent, and morally upright for fear of being pilloried; it's easier to pretend to conform to social expectations than to actually do so. Whether or not Hogan performed well in front of the camera is neither here nor there, his every move was carefully scrutinised and commented on by an army of salivating perves. So now, instead of "Aging hero working the celebrity circuit as his career winds down" he's now "Aging hero does surprisingly well in his sex tape performance during the action, whines and makes racist comments afterwards." If you can't be a prat in your own time, when can you? Sooner or later you've got to be allowed to take a break from performing. By sending that sex tape viral, the message to Bollea is, "You're Hulk Hogan. Exceed our expectations." Nobody benefits from effectively enslaving another person to their own agenda, whatever it may be.

My personal belief is that, unless he's trying to promote himself as an upright, family values kind of guy, leave him alone. Unless there is a benefit to the public of posting such a story, etc., don't post it. The gossip-lovers will have to do without.

How would you like it if it happened to you?

It's happening to all of us now. Internet researcher has warned that in France, efforts to roll back the surveillance state in the wake of the Snowden revelations are having an effect he calls the Snowden Paradox; the more the people push for reform, the more likely it is that the surveillance regime's most egregiously illegal activities will be retrospectively made legal. Resist the urge to point and laugh; the Americans use Five Eyes to get around their laws (as does GCHQ), and our own security agencies are surveilling anyone who might possibly be anti-Establishment if they indicate an aversion to letting our environment be poisoned. And the verdict is in: being in a social environment in which you know that certain words might get you into trouble is already having a chilling effect on social and political discourse: this explains why our news media is increasingly uncritical of government policies, even when they're proven harmful. 

It's happening to our media

The most egregious example of this came to my attention via a 38 Degrees campaign update from Sally Burke, who proclaimed victory when NHS England announced it will begin the procurement process for selecting a service provider to set up a mental healthcare inpatient unit in East Yorkshire.

Work will be undertaken to determine how many beds are required at the new unit, which will look after children from Hull, the East Riding, North Lincolnshire and North East Lincolnshire.

NHS England will then seek bids from organisations willing to set up the unit and is planning to award the contract (emphasis mine) in November. - Victory for Kids in Crisis! New mental health unit to be created for Hull and East Yorkshire, by Allison Coggan for the Hull Daily Mail

I know you shouldn't look a gift horse in the mouth but we paid for this and damn it, I'm looking. Basically, they under-funded the unit they had, closed it down, and are now pretending they had a change of heart while calling the corporate vultures to feast on the cold, stiff corpse of mental healthcare provision for kids and young adults. Victory? I think not. Whether it's better than nothing or not remains to be seen but the real question is, why didn't a campaigning newspaper pick up on the privatised element of NHS England's offer? They've already bashed a business plan for ten beds. It's almost as if they're resigned to the loss of the NHS as a directly tax-funded service. Enjoy your sloppy seconds, Hull.

It's happening to our websites

One of the reasons I got into the digital rights war is because I was a web designer whose livelihood was threatened by SOPA, a bought-and-paid-for law whose provisions included blocking websites on suspicion of infringement of copyright. As a digital business, Wendy Cockcroft Web Design would have foundered if a scraper bot had accused me of infringement even though I mostly make my own illustrative images. And make no mistake, the bots can and do DMCA the most innocent web pages if a keyword gets their attention. And that's not all, I've complained to Our Glorious Leaders about websites being shuttered on suspicion alone of infringement, only to have my concerns handwaved away. So, to no-one's surprise, our Glorious Leaders' cack-handed attempt at taming the internet has resulted in over-blocking in the name of the Four Horsemen of the Infocalypse. Few Horsemen were actually apprehended or their activities prevented in the enforcement of these laws.

It's happening to everyday interactions

It's illegal to be a prat online. The right to be protected from offence is touted as hate speech and extremism prevention but the fact is, it's so subjective that I've been accused of being an extremist for being against describing copyright as property. So if I slag off copyright expansion and advocate against it, am I likely to find Plod knocking on my door at first light with a battering ram?

It has actually happened to me

I've complained about being censored by effectively being pushed offline by trolls. I had a choice; put up with the draining effect of endless drama or bug out and wait till they'd moved on. I've also had trolls try to silence me by trying to get me fired from my job by telling lies about me in posts about my former business activities (Wendy Cockcroft Web Design died when I started working for my current employer. I can't do both) on consumer complaints websites. Since his beef was that I was talking about reputation on the internet in comments on Techdirt and here in my blog, On t'Internet, I decided to call his bluff by repeatedly writing posts about reputation; trolls tend to give themselves away sooner or later by dropping hints as to who they really are. He gave up and has left me alone ever since. He either realised what I was up to or got bored when I wouldn't get involved in his proxy flame war. If you want to get a bear poked, get your own stick and prod that thing yourself.

During those times I was held up to scrutiny, my every comment analyzed and critiqued. In the first case I was force offline for months and driven out of the community I'd invested in for years. In the more recent one my supportive employers agreed that this was troll activity and that was the end of it. The end result in both cases has been the chilling of my personal discourse. I'm unwilling to discuss details of the first trolling case beyond the basics as I don't want the trolls to come back to haunt me (they're like The Grudge, believe me) and I can't talk too much about my job or the industry I'm in because it gives job threat trolls ammo to use against me.

Is it happening to you?

For most of us, constant mass surveillance is an ongoing background thing that we're barely aware of. Indeed, until we feel the hot, foetid breath of the surveillance state on the back of our necks it's not something we're willing to pay much attention to. However, the minute we feel the glare of the spotlight upon us and hear the whispering voices of our judges as they conspire to paint a different picture of us than the person we see in the mirror, we feel angry, defensive, and an all-consuming desire to escape the sensation of being an animal in a glass cage with nowhere to hide from prying eyes. Welcome to Terry Bollea's world. To Peter Thiel's. To every celebrity ever's. I believe we all have a right to privacy, and unless someone can present me with a compelling reason to believe otherwise, this includes celebrities.

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