Reconciling privacy and speech in the era of big data: a comparative legal analysis.

AuthorKrotoszynski, Ronald J., Jr.
PositionAbstract through I. Europe and Privacy: Exploring Salient Points of Conflict with the United States C. The Scope of Privacy Rights and Mandatory Civility Norms 3. Privacy and the Potential Scope of Protected Materials a. The Rights to Control One's Image and Personal Data, p. 1279-1309


In both the United States and the nations of Western Europe, significant constitutional commitments safeguard both expressive freedom (including freedom of speech and of the press) and also a generalized constitutional right of privacy. With some regularity, however, these rights will come into conflict, as the protection of one right can be achieved only at the cost of abridging or denying the other. When a government official or public figure objects to the publication of an embarrassing photograph, perhaps taken by an invasive paparazzo, it is simply not possible to fully vindicate both a newspaper's interest in publishing the photograph and the subject's interest in privacy. Although generalizations often oversimplify complex legal, cultural, and moral understandings, it nevertheless remains true that European courts tend to place greater relative emphasis on safeguarding privacy than do courts in the United States. Thus, the standard narrative posits that the United States gives an absolute priority to speech, over vindication of privacy interests, whereas European law tends to discount the importance of expressive freedom in favor of more reliably safeguarding privacy. At one level of analysis, this standard account gets things right--protected speech is both wider and deeper on this side of the Atlantic than in contemporary Europe. This standard account, however, underestimates the European commitment to protecting expressive freedom; the European commitment to safeguarding privacy does not, and will not, invariably override free speech. A comparative legal analysis also demonstrates that privacy is far from dead in the United States. Going forward, the challenges presented by the advent of "Big Data" and society-wide government surveillance programs increasingly will require both the United States and Europe to see privacy as an essential condition for safeguarding speech. Democratic self-government presupposes an ongoing dialogue among citizens, but an open dialogue about government simply cannot exist in a surveillance state. In the brave new world of PRISM and secret government manipulation of metadata, we must recognize that privacy and speech are fundamentally complementary, rather than competing, human rights. Moreover, this is a lesson that comparative legal analysis can teach.

TABLE OF CONTENTS INTRODUCTION I. EUROPE AND PRIVACY: EXPLORING SALIENT POINTS OF CONFLICT WITH THE UNITED STATES A. Balancing and Proportionality B. Privacy as a Positive Right C. The Scope of Privacy Rights and Mandatory Civility Norms 1. Privacy and Place 2. Privacy and Persons 3. Privacy and the Potential Scope of Protected Materials a. The Right to Control One's Image and Personal Data b. Mandatory Civility Norms Limiting the Use of Opprobrious or Insulting Language in Public II. IMPORTANT SHARED VALUES EXIST BETWEEN THE UNITED STATES AND EUROPE CONCERNING BOTH PRIVACY AND SPEECH III. THE RIGHT OF PRIVACY GOING FORWARD: CHALLENGES AND ISSUES IN THE ERA OF BIG DATA CONCLUSION INTRODUCTION

Since its landmark decision in New York Times Co. v. Sullivan, the Supreme Court of the United States has been remarkably vigilant in safeguarding the First Amendment's protection of freedom of speech and freedom of the press. (1) In an important series of cases, the Justices extended the right of fair criticism of public officials to reach not only public figures, but even private figures who become enmeshed in matters of public concern. (2) As a general proposition, a media defendant may be liable for money damages only if a plaintiff can show that a false statement of fact concerning a public official, a public figure, or a person involved in a matter of public concern was made with actual malice, that is, with either knowledge of falsity or with reckless indifference to the truth or falsity of the assertion. (3)

But, the constitutionalization of the law of tort--and by implication, the displacement of privacy--only begins with the actual malice standard. Even if a plaintiff prevails at trial, a media defendant is entitled to a close review of the factual basis of the verdict on appeal; (4) only if the plaintiff has proven the case with clear and convincing evidence may the adverse verdict against the press entity stand. (5) This appellate review of "constitutional facts" provides yet another layer of protection to media defendants--and another roadblock against recovery that a plaintiff must successfully overcome.

Of course, the protection of speech and the press in the United States extends well beyond the demanding standard for establishing liability for libel under the law of defamation. The protection also encompasses the right to engage in outrageous parody, which exists, at least in part, to inflict emotional harm on its subjects. (6) Protected speech also includes public protest designed to be intentionally invasive and offensive; provided that the speech activity is otherwise lawful, the fact that it violates basic notions of human decency and privacy does not determine whether it enjoys constitutional protection. (7) The contemporary First Amendment even protects objectively false speech--at least in the absence of some concrete harm associated with its dissemination. (8) Thus, the First Amendment not only requires constitutional protection of false speech, (9) but also creates a zone of protection for outrageous and offensive speech.

Given the one-sided, speech-favoring outcomes of the New York Times Co. v. Sullivan, Hustler Magazine, Inc. v. Falwell, and Snyder v. Phelps line of cases, it should not be particularly surprising that other polities, also sharing a serious constitutional commitment to protecting expressive freedom, have chosen not to follow the U.S. approach to reconciling free speech with other constitutional values, including privacy, dignity, and personal honor. In much of Western Europe, in fact, concerns rooted in protecting personal privacy and dignity routinely take precedence over claims associated with freedom of speech and the press.

The European Court of Human Rights (ECHR), seated in Strasbourg, France, hears and decides cases brought by individuals against signatories to the European Convention for the Protection of Human Rights and Fundamental Freedoms, commonly referred to as the European Convention on Human Rights (European Convention). (10) The European Convention is an instrument created by the Council of Europe, an entity that includes not only all twenty- eight member states of the European Union (EU), (11) but many others as well. (12)

The ECHR creates and enforces a kind of pan-European law that signatory states and the Court of Justice of the European Union, the EU's highest juridical entity, generally will follow in their own jurisprudence. (13) As Chief Justice John L. Murray, of Ireland, noted, "Since the mid-1990s in particular, the Court of Justice [of the European Union] has increasingly looked to the European Convention on Human Rights for inspiration as to the nature and scope, or even existence, of fundamental rights in Community law, having recognized the preeminent position of the Convention by 1991." (14) He added, "In doing so, the Court of Justice [of the European Union] has adopted a somewhat deferential position to the Strasbourg Court in the interpretation of fundamental rights that are contained in the Convention." (15)

Strictly speaking, all signatories to the European Convention are bound to implement the decisions of the ECHR. (16) So too, the European Union will, as a general matter, follow decisions of the ECHR in interpreting and applying the EU's governing treaties, statutes, and regulations. (17) The European Union is in the process of becoming a signatory to the European Convention, and in consequence, directly subject to the jurisdiction of the ECHR. (18) In sum, the decisions of the ECHR constitute a body of pan-European law that is meant to express and embody the contemporary human rights practices of the signatory states. (19)

Careful consideration of how the ECHR has attempted to reconcile privacy and speech provides a useful alternative baseline for considering how to resolve conflicts between these rights. Moreover, as all democratic societies struggle with how best to control and constrain the potential ill effects of Big Data and the new surveillance technologies that make effective use of Big Data possible, the question of how to integrate privacy and speech is more pressing than ever. Alexander Meiklejohn famously argued that free speech constitutes an essential condition for the maintenance of democratic self-government. (20) would argue, in turn, that privacy is integral to maintaining effective protection for the freedom of speech; it is difficult to posit democratic self-government in the absence of meaningful privacy rights (at least against the government). (21)

The specter of "Big Brother" watching (22) will undoubtedly have profound implications for the exercise of expressive freedoms--indeed for the very idea of democracy itself. (23) If a population is to engage in a process of democratic self-government, it must be capable of free and unimpeded collective...

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