THEY ARE FREE TO SPEAK NOT WHAT THEY OUGHT TO SAY, BUT WHAT THEY FEEL: PRIVATE CHATS,

PUBLIC COMMUNICATIONS AND CHANGING LEGAL ATTITUDES

ADAM FELLOWS LLM, INFORMATION RIGHTS LAW & PRACTICE NORTHUMBRIA UNIVERSITY

INTRODUCTION
Instead of looking at privacy as a set of values, why not privacy as social interaction? Basis on Kirsty Hughes article A Behavioural Understanding of Privacy and its Implication for Privacy Law. Article based on 1970s work, but publication in 2012 makes it perfect for application to social media. Hughes argues that barriers we create in interaction need to balance, and that normative barriers are breaking due to technology. Law as a physical barrier redresses it. This is not far enough, as the law as a physical barrier is also breaking. Only looking at criminal law, as civil law is currently in a state of change.

SOCIAL INTERACTION & PRIVACY

How can social interaction lead to privacy? Westins work on privacy sets out a spectrum of experiences: Solitude, by keeping oneself away from interaction; Intimacy, exercising corporate seclusion to achieve a close relationship with two or more individuals; Anonymity, the desire of individuals for times of public privacy; Reserve, the creation of a barrier against unwanted intrusion, protected by willing discretion of those around; and Exposure, where there are no barriers.

SOCIAL INTERACTION & PRIVACY

Hughes theory follows and expands upon this, with six core parts: Privacy is a state of human experience; People exist in Westins different states of privacy; People put up barriers to protect their privacy, using physical, behavioural and normative barriers; Privacy is experienced when the barriers are respected; An invasion of privacy occurs when the barriers are breached; and Experience privacy allows an individual to develop a self of self and regulate social interaction to suit that self.

SOCIAL MEDIA
Hughes theory adds two new points to existing theory: There is still a sense of these privacy barriers, even when engaged in interaction in public places; and Privacy is not just about preserving private information, but also a private person. These are crucial as these points allow for a discussion of privacy theory and social interaction as applied to social media. For her, technology has encouraged the normative barrier to fail.

HUGHES THREE BARRIERS

As applied to a pub (common Twitter analogy): Physical barrier: layout of the pub, screens/booths, noise, being split into groups; Behavioural barrier: speaking at an acceptable level to be heard, but not so loud as to be overhead if not desired; and Normative: not drawing attention to an overhead conversation, by pointing out the offending individual, repeating comments, and inviting judgement. Normative barrier fails on Twitter, Facebook etc; Twitterstorms

HUGHES THREE BARRIERS

If a barrier falls, individuals spend time building other barriers higher. Hughes calls this a waste of defensive expenditure. If barriers continue to be built and yet fail because of the unequal protections afforded by them, an individual will end up in a state of solitude. A persons social interaction requires all three barriers to be present to allow for some form of privacy. Law in these circumstances is a physical barrier, it stands to create a divide between what is acceptable and not without values attached.

HUGHES THREE BARRIERS

As applied to Twitter: Physical: the limits imposed upon the use of the electronic media platforms, such as the companies own terms of use, filter systems, and in my submission the law that applies to the breaking of these physical barriers; Behavioural: created by an individual themselves when interacting, knowing what to say, what may cause offence, and how to draw that distinction between what is acceptable and what is not; and Normative: created by those around them, which allows for interaction between individuals, the assumed reaction of ignoring an individual if you do not care for what they have to say, as in our example of the pub above, and a general sense in the freedom of expression.

FALL OF THE NORMATIVE BARRIER

Examples from s 127 Communications Act 2003: Matthew Woods comments on Facebook about disappearance of April Jones and Madeline McCann led to a mob turning up at his house. He received a 12 week jail sentence, reduced to six on appeal;

Sam Busby also made comments on Facebook about April Jones and received a six week sentence suspended for 18 months on the grounds of his remorse. He believed he was only speaking to his friends (state of intimacy); and Stephen Perrin regrets putting videos of him as a cyclist being assaulted by a van driver online, as the van driver has become a victim of a hate campaign.

FALL OF THE LAW AS PHYSICAL BARRIER?

Paul Chambers and the Twitter joke trial? Azhar Ahmed received a community order for posting comments about British soldiers dying in Afghanistan. Noticeably not a custodial sentence, as his speech was seen as political.

Is the law policing speech online too much?

Are people too sensitive to the words of others? Legal solution not to change the law, but ensure attitudes to use of the law change.

RESTORING THE BALANCE

Police and CPS attempting to reduce the use of the law as a barrier to online speech: CPS guidelines on social media and consultation; ACPO statement on not wasting time with low-level online matters. Still investigating racist/homophobic comments, contempt of court, and breaching anonymity orders. Normative barrier still difficult to rebuild:

Recent Twitter case of Old Holborn receiving death threats for comments about Hillsborough and James Bulger.

HOW TO FIX THE NORMATIVE BARRIER

No easy solution. If normative barriers purpose is to reduce the physical barrier by social acceptability, then it must be a policing mechanism.

It should focus on itself, as well as the physical barrier.

Users of social media need to remember they exist in a state of reserve, and all rely on discretion of others to enjoy that form of social interaction and privacy. If not, then social interactions will decrease and more people will end up in an online state of social solitude.