Friday, 21 February 2014

The history of privacy in US and UK

Jeff Jarvis (@JeffJarvis) (+Jeff Jarvis), author of 'What Would Google Do?' said at 2m45s into the video above and here:
"There are new morays and new norms that are being created. Technology always frightens us. We did not discuss a legal right to privacy in this nation until 1890 and it was because of the invention of the Kodak camera. Louis Brandeis and his co-author of the Harvard Law Review were frightened because Mr Warren's daughter's wedding had been photographed and the penny press was a way to expand that and we got very scared (see 1890 paper here). And what they came back to in the end, they couldn't find a right to privacy in the US Constitution. We have a right to publicness, it's the First Amendment, but not really a right to privacy. And whenever technology has come it involves change, and change unsettles us and we get scared of of that and then we look for all the bad things that can happen and we worry about it and we should because we should guard against cruelty and bad things that can happen. But we shouldn't manage our whole world around that."
Lord Neuberger, President of the UK Supreme Court, said of privacy in the UK in his address, 'British Law and European Law':

"The experience of more than thirty years applying EU directives and regulations, and of more than twelve years applying the Convention, coupled with considering, following or distinguishing decisions of the Luxembourg and Strasbourg courts, has made a great difference to the approach of UK judges when deciding cases. EU law has introduced new topics like VAT and new concepts such as subsidiarity; and Convention law has introduced the judges to new topics like privacy and new concepts such as the margin of appreciation, and they have therefore self-evidently changed our law.
Thus the common law has developed to take into account the need for the law to accommodate a right to respect for privacy and for family life. Twenty years ago, the Court of Appeal held that the common law did not recognise any right to privacy, so that a TV star lying unconscious in hospital after a near-fatal accident, had no right to complain about a newspaper publishing photographs of him taken by a paparazzo who managed to trespass into his room and photograph him33. Following the passing of the Human Rights Act, there was a very different result when a newspaper published photographs secretly taken by another paparazzo, of a model entering a rehab clinic, or unauthorised photographs of the wedding of a couple of film stars34 taken secretly. And, of course, the common law has not just had to accommodate respect for privacy and family life; it has also had to accommodate a positive right to freedom of expression, freedom of religion, freedom to marry, and much more besides. 
When I say that UK law has changed as a result of our European involvement, I am not just referring to the inevitable fact that the courts have had to adapt to and apply new principles arising from EU and Convention law. Studying judgments of the CJEU and the ECtHR has led to the courts of this country taking a more principled approach to decision- making than in the past. This is scarcely surprising: as I have already mentioned, the common law has tended to be pragmatic and therefore very ready to incorporate good ideas from other systems."
Speech in full here.

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