Privates on Parade

10 January 2018

No one needs convincing security is important. Even if you only own a tiny one bedroom flat, you are still going to lock the door each time you go out. But privacy, which overlaps with security, is often treated casually, seen as something that only people with something to hide need worry about. 

As a privacy lawyer, I find this baffling. 

When I'm not working, I'm spending time with my two small children. One of their favourite things is when I make up stupid songs for them, sing really badly and dance around the room looking like a complete idiot.

Now this, of course, happens in the privacy of my own front room. But what if I discovered I was being watched? How would I feel about these most private and precious moments being observed by everyone and anyone?

Actually, there is an entire genre of YouTube videos devoted to this kind of experience. You'll recognise the scenario. An individual who, thinking they're alone, let's it all hang out and indulges in some wild singing and gyrating. Then, they have the shock of their lives. They discover that, in fact, that is not the case. They are not 'alone' at all. Instead, there is a person watching and lurking. When they realise they are being watched, you can see, and even feel, the sense of shame and humiliation. It is that sense of: 'This is something I'm willing to do only if no one else is watching'.

I've borrowed this example from the Pulitzer-winning American Lawyer and journalist, Glenn Greenwald. His newspaper’s reports of American and English surveillance programmes, put the cat amongst the proverbial pigeons as the stories were based on classified information disclosed by former CIA employee, Edward Snowden.

Greenwald has spoken to audiences all over the world about why he felt the need to report about privacy and how it is being invaded. Intriguingly, when Greenwald raises the topic, people frequently say: "I don't really worry about privacy because I don't have anything to hide". When he hears this position, Greenwald gets out his pen, writes down his email address and suggests the people saying they don’t worry about privacy:

“Email me the passwords to all of your email accounts, not just the nice, respectable work ones in your own names, but all of them, because I want to be able to just troll through what it is you're doing online, read what I want to read and publish whatever I find interesting. After all, if you're not a bad person, if you're doing nothing wrong, you should have nothing to hide."

The typical response at that point is a realisation that it’s not just those who have nothing to hide that want to protect their privacy. Edward Snowden said that saying you only need to worry about privacy if you have something to hide, is like saying you only need to care about freedom of speech if you have something to say. 

 It is only relatively recently that we have begun to take digital privacy seriously. Think back to Friends Reunited and how we all rushed to share updates about our private lives with old school friends. More recently, how many of us have posted baby photos to a private Facebook group or a protected Instagram account without thinking about it? This behaviour is so widespread it has its own definition, namely “sharenting”.  

The fact is images shared by parents can be distributed to mass audiences, despite so-called privacy settings. The children themselves, have no rights, here. They are too young and vulnerable to even begin to control their own digital footprint. This is why I have often argued that kids have an ethical right, perhaps even a legal right, to control this kind of personal information. One family I represented successfully challenged a newspaper from taking photos from a private Facebook account and sticking them on the front page. While I was delighted we were able to protect the family’s privacy, arguably the photos should not have been made easily available in the first place.

Psychoanalysts have flagged the really profound cost, to all us if we are forced to forfeit elements of our personal privacy. If privacy is forfeited they say “we lose the sense of a textured, meaningful life.”

 My interpretation of this is that everything we do is always made public, then we are always on show: we are never able to grieve, row, make love or laugh, without the tyranny of 'the other' on our backs. If we permanently live in a “Truman Show” world, we can’t have true freedom of expression. 

 Another risk if we forfeit privacy, is that we lose the world of imagination and creativity. For me, that means stopping doing silly dances for my kids. For a musician, it could be no longer striking some bum notes in the course of producing the next great musical. Without privacy, we lose the capacity to relate to one another intimately. Each and every human relationship - parent, child, spouse, lover, colleagues, friends - is vulnerable. If there is no privacy, all of these precious ties risk becoming polluted because of indiscriminate public exposure. The potential damage is devastating.

I spend my time at work trying to win more privacy for business and creative professionals. Often I find that even if people sign up to the idea that privacy is an essential human right, they think there should be a different rule for those in the public eye. That the famous have less right to privacy than other people. 

I sort of understand where Joe Public is coming from. It’s easy to think that people in the public eye have made a form of Faustian pact, trading publicity and riches for control over their private life. Yet if we accept that privacy is a fundamental human right, it shouldn’t just be ignored or at least not without a very good reason. There has to be a strong public interest to justify invading someone’s privacy. Sadly, many of the stories I see newspapers and magazines trying to publish don’t come anywhere near to meeting the true public interest test.

For newspapers and many other commercial organisations, privacy is big business. Your own privacy is valuable. It's being monetised all the time. Your details can make other people rich. Companies like Rapleaf.com will tell you what your personal information is worth. Big life changes – marriage, moving home, divorce prompt big changes in our buying patterns. A US superstore once infamously predicted one of its customers was pregnant, and sent her vouchers for maternity wear before the teenager had broken the news to her angry parents.  

However, all of us are, of course, much much more than our buying or lifestyle choices. I profoundly believe that our privacy is a human right. And no, you don't give up that human right to privacy, because you do something wrong. Imperfection, as I know only too well, is also part of the human condition. Nor do you lose your right to privacy because you’ve achieved great success.

My fear is that privacy is being treated too carelessly. It's precious and essential and deserves the same respect as physical security. I'm proud to keep fighting to protect it and also of my terrible singing.

Jenny’s top tips for protecting you, your family and guests from unwanted attention during your holiday

Prepare – Few of us want to think about the media impact of a holiday, but carrying out some basic due diligence will help you to relax.

  1. Choose your destination carefully. All countries which sign up to the European Convention on Human Rights acknowledge that you have a right to privacy, and that this sometimes extends to activities carried out in public. Obviously the quality of beaches and restaurants is likely to rank higher than local privacy laws when you’re deciding where to go, but it is still a factor worth considering.
  2. Ascertain where details of your trip might become known, who might record images of it and if there is anything particularly noteworthy you plan to do that is best avoided.
  3. Think about how photographs taken of you on holiday will be of interest to others – will the pictures themselves be of interest or could they be used to illustrate another story about you and your business?

Investigate – Can your hotel or resort offer any assurances that your stay will be kept under the radar? Alternatively, would it be preferable to rent a private villa in a more secluded area to avoid these issues altogether? Does the restaurant you’ve been dying to go to have a private area? If appropriate, consider engaging a security company to advise on these issues.

De-socialise – Your family are often inadvertent casualties of the interest that the media have in you but they can also be the source of media stories through use of social media. The media will review social media accounts and feeds from your family, so social media awareness is critical. Talk to your family, guests and friends so that they don’t accidently expose you via social media by disclosing where you’re going, where you are or what you’re doing. When prominent individuals first instruct us, they have often lost track of family social media accounts and balk at how much information about their lifestyle is being made public.

Engage – Encountering the paparazzi on holiday is rare but when it does happen it can be extremely stressful. Turn the tables by taking their picture so they can be identified and further action taken. Instruct your lawyers to spell out to them the boundaries of privacy you expect them to observe. With these defined parameters, robust and quick action is much easier to enforce should they fail to toe the line.

Instruct – In the event you see yourself, family or guests being photographed, request that your lawyers use confidentiality and privacy rights to prevent sharing or publication of the images. If images have already appeared online, ask your lawyers to have the images removed. It’s far easier to do this when images first appear rather than when they are published by a newspaper or magazine.

This article was first published in the January 2018 edition of Victor, magazine of the private jet charter.

About the Author

Jenny Afia

Partner

Jenny helps the world’s most successful people have more privacy and protect their reputations. Her clients are mainly talented individuals, particularly from the entertainment, technology and financial sectors.

646 934 6219