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Abstract
The protection of privacy is predicated on the individual's right to privacy and stipulates a number of principles that are primarily focused on information privacy or data protection and, as such, are insufficient to apply to other types of privacy and to the protection of other entities beyond the individual. This article identifies additional privacy principles that would apply to other types of privacy and would enhance the consideration of risks or harms to the individual, to groups and to society as a whole if they are violated. They also relate to the way privacy impact assessment (PIA) may be conducted. There are important reasons for generating consideration of and debate about these principles. First, they help to recalibrate a focus in Europe on data protection to the relative neglect of other types of privacy. Second, it is of critical importance at a time when PIA (renamed ‘data protection impact assessment’, or DPIA) may become mandatory under the European Commission's proposed Data Protection Regulation. Such assessment is an important instrument for identifying and mitigating privacy risks, but should address all types of privacy. Third, one can construct an indicative table identifying harms or risks to these additional privacy principles, which can serve as an important tool or instrument for a broader PIA to address other types of privacy.
Acknowledgement
We gratefully acknowledge comments made on an earlier draft of this article by members of the IFIP Summer School on Privacy and Identity Management 2013, Nijmegen, The Netherlands, 21 June 2013, as well as by the two anonymous reviewers. We thank in particular the reviewer who was concerned about a suitable legal basis for PIA.
Notes
1. In addition to the documents described here, other examples include Scottish Government (Citation2011), Marx (Citation1998) and Pounder (Citation2008).
2. The HEW report was one of the first such reports, but by no means the first, as its Appendix B makes clear. Even earlier initiatives had been undertaken in the UK, Canada and some other countries. See, for example, Home Office (Citation1972) and Task Force on Privacy and Computers (Citation1972).
3. Space limitations prevent full description of these principles.
4. OECD (Citation1980, General Background, para 38).
5. This article does not deal with recent revisions of the OECD and CoE documents.
6. Further discussion of old and new principles can be found in Raab (Citation2012).
7. The New Act also significantly strengthens the powers of the Australian Information Commissioner to conduct investigations and ensure compliance with the amended Privacy Act. See DLA Piper, Data Protection Laws of the World, March Citation2013, pp. 11–12. See also Talevski and Osman (Citation2013).
8. See Part 2, section 6 of the Act. http://www.legislation.govt.nz/act/public/1993/0028/latest/viewpdf.aspx
9. Clarke identified these four categories even earlier, in his PhD Supplication in 1995. See http://www.rogerclarke.com/DV/PhD.html. He has variously referred to the four categories as categories, interests, dimensions, components and aspects. We use the term ‘types’, which is used in the PIA guidance documents to which we refer in this paper. Clarke's fourfold conceptualisation has been adopted by various privacy regulators in Australia, Canada, New Zealand, the UK and Ireland.
10. The last-named item is often called ‘informational self-determination’, a pillar of information privacy protection in Germany.
11. However, the ICO's new PIA code of practice, adopted in March 2014 (ICO Citation2014) following a four-month consultation period, has reduced the types of privacy to two, i.e., information privacy and physical privacy. The consultation was carried out between August and November 2013. Information Commissioner's Office (ICO), ‘Privacy impact assessments code published’, News release, 25 Feb 2014. http://ico.org.uk/news/latest_news/2014/privacy-impact-assessments-code-published.
12. Gary T. Marx (Citation1998) reflects these changes in his articulation of a ‘new ethics of surveillance’, but his focus is predominantly upon surveillance as involving personal data collection, the province of traditional privacy law and regulation.
13. For a more detailed exegesis of the seven types, see Finn et al. (Citation2013).
14. For a review of publicly available PIA reports in the UK, see Wright (Citation2014).
15. The right to dignity is proclaimed in Article 1 of the Charter of Fundamental Rights of the European Union: ‘Human dignity is inviolable. It must be respected and protected.’ http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2012:326:0391:0407:EN:PDF
16. See Principle 8 in the Australian Privacy Charter: ‘Private space – People have a right to private space in which to conduct their personal affairs. This right applies not only in a person's home, but also, to varying degrees, in the workplace, the use of recreational facilities and public places.’ Jacoby says similarly: ‘The concept of “home” or living quarters has been construed broadly to be understood as any domain of privacy’ (Jacoby Citation2007: 457). The ‘right to be let alone’ is the oldest and best-known definition of privacy. However, its applicability today is wider than was the case back in 1890 when Warren and Brandeis penned their classic essay. We interpret the right to be let alone as covering, for example, not being subjected to unsolicited marketing telephone calls, not being videoed every time one talks to a friend in a bar, not being tracked wherever one drives one's car or every time one turns on one's computer, not being required to go through a body scanner, etc. In other words, the right to be let alone is applicable to all seven types of privacy.
17. See Principle 10 in the Australian Privacy Charter: ‘Anonymous transactions – People should have the option of not identifying themselves when entering transactions.’ This is only one example of anonymity.
18. ‘Individuals not only need to be able to be alone with their own thoughts, but they also need to be free to share those thoughts with others without being subject to the watchful, possibly critical, eye of the state … By ensuring that there is a limit on what the state can know about us, privacy not only helps to protect individual autonomy, but also leaves us free to use that autonomy in the exercise of other fundamental rights like the right to free speech’ (Goold Citation2010, 43). See also Principle 6 of the Australian Privacy Charter: ‘Freedom from surveillance – People have a right to conduct their affairs free from surveillance or fear of surveillance. “Surveillance” means the systematic observation or recording of one or more people's behaviour, communications, or personal information.’ http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1876069
19. This is an anti-discrimination principle, because profiling and social sorting pose threats to individuality.
20. Principle 8 in the Australian Privacy Charter relates to this, although not to travel or movement as such: ‘Private space – People have a right to private space in which to conduct their personal affairs. This right applies not only in a person's home, but also, to varying degrees, in the workplace, the use of recreational facilities and public places.’
21. This principle has been adapted from Principle 18 in the Australian Privacy Charter: ‘No disadvantage’.
22. http://www.privacy.org.au/About/PrivacyCharter.html. The Charter was produced by the Australian Privacy Charter Council (APCC), a civil society group.
23. See, for example, ‘damage’ and ‘distress’ in the UK Data Protection Act 1998, § 13.
24. This was prepared for the UK Information Commissioner's Office.
25. As Calo has shown, with reference to Solove, there are still further complications – and scholarly disagreements – in discussing privacy harms and risks. These relate to how the boundaries are drawn round what is, or is not, a privacy harm (the need for a ‘rule of recognition’ to determine the limits; and the relationship between subjective (perceptions of loss of control, resulting in fear or discomfort) and objective (actual adverse consequences) categories of harm (Calo Citation2011). The present article does not address these and other issues in the understanding of risk and harm.
26. A further point in the same vein can be made: in data protection legislation, the individual is referred to as a ‘data subject’ – a depersonalised term that strips the individual of her individuality, as though she were only a set of 1s and 0s. At the EC level, there appear to be few policy documents focused on other types of privacy as distinct from data protection.