23 June 2011

from Lawrence, this Sunday meeting: The membrane between private and public life

Dear Friends,

This Sunday we are discussing: The membrane between private and public life.
An issue that seems to be very topical these days of social media,
networking and the internet. But as I try to show in my short essay the
issues concerning private and public life are at the heart of moral
philosophy and political philosophy.
In the meantime I am including an email from Carlos who is looking for
speakers for the 2011-2012 programme of the Club of Free Men:
Hi Lawrence:
I hope you are doing well.
Could a person of your group make a short presentation an all the
dedications of our conferences? (Total of 9 from September to June next
(Ie: Kant, Hippies?), on how they relate to freedom?
Enclosed is the program.
Club of Free Men
See you Sunday
See you Sunday,


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The membrane between private and public life.

We are tempted to interpret membrane to mean a barrier that will keep
one's privacy and one's public life separately. And in a way we would be
justified in believing this since at least today we place a high premium
on our privacy.
To wit, we are constantly reminded how online services have mountains of
information about us and what we do. And anyone who participates in any
social media portals would be aware of the privacy implications of what
they put on their accounts.
Employers, we read in the media, will now look up a prospective
candidate in these social media portals to really find useful
information about that person. And of course, one of the biggest fears
we have is to suspect that our governments are basically spying on us,
on everything we do and everything we think of.
So the idea of a barrier to keep intruders out of our life makes sense.
Indeed, the Wikipedia article on Privacy does point out that in the
European Union member countries have to legislate law to guarantee the
right to privacy of their citizens. However, in the introduction the
authors of the article point out that the idea of Privacy is mostly an
English-American cultural concept. And then go on to say that there is
even a difference between English-American privacy and Western European
concept of privacy, if it exists at all in Europe.
In a very brief and interesting document by the Association of Corporate
Counsel* they include a brief analysis of the differences between the
Common Law Legal System (English-US) and the Civil Law Legal System
(European Law). What is important for us here is what is described in
the document as Primary Source of Law: under Common Law this is cases,
or results of court judgements, and in Civil Law it is legislation.
However, it is recognised that today there is a great deal of cross
references to the methodologies of both systems. And no one for a
seconds believes that one system is absolutely better than the other,
both have their good and bad points.
But why is this important for us as philosophy. Firstly, because
philosophy has no boundaries, there is nothing out of bounds for
philosophical investigation, and secondly because I believe that here
lies the problem with today's privacy issue.
Apart from privacy, and therefore private life, we believe that there is
an even more important concept than privacy itself, that is liberty and
freedom. We believe that we are free agents to go about our business as
we feel fit. This does not mean that we are free to impose our will on
others, and unfortunately, this does not mean that every human being is
indeed free or regard themselves as being free. But the real tragedy is
not to know that one is not free, but rather not knowing that one is not
If we accept the principle that we cannot expect privacy unless we are
free, then the challenge we have to deal with is who or what is
responsible to guarantee our freedom, and by expressed or implied
measures, is responsible to guarantee our privacy. The philosophical
issue, or paradox, here is how can we impose a duty on others so that we
can enjoy a personal right. By having our privacy protected we are the
only ones that benefit from this, but, however, there must be a system
or mechanism in place that will protect this right. In fact, I would
argue that there ought to be a system guaranteeing this right even if we
are not philosophically savvy to know that we have such rights:
unfortunately the UN Human rights charter is as effective as a damp squib.
Which of course, makes sense for the European Union to legislate laws
establishing our right to privacy, since under the European system you
can only have a right if it is backed by legislation, contrary to the
Common Law system (at least in theory) that you have a right unless a
judge has decided against it . Unfortunately, the very same legislators
and unelected commissioners, fail to see the paradox and irony of this
policy of legislating privacy rights and by implication freedom and
liberty rights. The paradox is of course the idea that some omnipotent
power and authority such as the European commission or a parliament
enacting a law giving us privacy, and by implication, liberty. It is
like saying we've got ways and means to make you happy even if we have
to impose happiness on you.
In the real life, at least in Western society, we do not believe that we
should be free or made free, and hence have privacy, but rather the
opposite, we believe we are free and we do have a right to privacy from
the very first second we are born. And these states of being, and not
rights, are inalienable ; they cannot be taken away or given in the same
way that a lung can be harvested or transplanted.
I would therefore say that, at least in theory, Case law does not need
legislation nor a case to establish freedom and privacy. In today's real
life the theory is as far away as the North pole is from the South pole.
Precisely this is background problem between Britain and Europe; the
European Union has opened a back door for UK governments to introduce
legislation which in many cases might not have seen the light of day
under the common law principles.
This brings me to the second paradox about privacy, and as I keep
saying, by implication liberty. If we accept the principle of
Parliamentary sovereignty
(http://www.parliament.uk/about/how/sovereignty/) then the idea that
such rights are to be legislated is as solid as a sand castle on a
Fukushima beach. Basically, the principle of Parliamentary sovereignty
means two things, the first is that Parliament is the highest supreme
court (never mind that the EU has tampered with this principle) and the
second is that one Parliament cannot bind a future parliament. It is
this second principle that most interests us, since what parliament
today can legislate to give citizen the right to privacy, tomorrow's
parliament can easily take away.
So the question we now have to ask ourselves is, what purpose or
function does a membrane have in keeping privacy and public life apart?
Presumably, the membrane, albeit legislation or philosophical theory, is
there to prevent the public life from interfering with the private life.
Even though we might have a good idea of what we mean by private life
and public life, we might still need to define these for our purposes.
Earlier I said that the right to privacy seems to imply a duty on others
so that we can enjoy a private right and benefit. Is there also some
kind of social or legal duty that we have in our private life?
We can safely assume that no one is really interested in what you and I
do at home. What we're planning for our holidays, what to wear this
Sunday, and what books we buy and read in our spare time. So far so
good. Of course, what bothers the authorities is what we plan in our
private life that will have a detrimental effect on society: crime,
terrorism, crime against minors, a coup d'état and so on.
We instinctively agree that such activities, no matter how much they are
carried out in private, ought not to be accorded the status of private
life and thus protected by the mantel of privacy. So, maybe the membrane
is not, does not, and ought not protect unsocial acts of the most
heinous kind. Maybe, the membrane is there to protect normal people
doing normal things. But there is a slight problem with this argument,
even though it is as sound as they come. The problem is that we are
supporting this scenario with logical and rational arguments, but real
life is anything but logical and anything but rational.
So how certain can we be about an act that ought to be disapprove off
and the act that we are actually investigating is an act that falls with
the right category? In other words, it is one thing to say stop all
criminal acts, and actually discovering criminal acts. By definition,
any human investigation comes with the health warning of possible error.
It is not that we are always mistaken, but rather that sometimes we
might be mistake. And the sting is that we won't know until the mistake
is evident or actually performed.
Thus even if the legislative membrane is there to protect the innocent,
by virtue of investigating anyone we run the risk of mistakenly
investigating the innocent. There need not be any malice in this
mistake, since as I said, it is human nature to err.
It seems to many people that in today's social environment the
authorities are prepared to take the risk that they might be wrong when
invading the privacy of others. Today's politics is based on pure
utilitarianism underwritten by pragmatism: catch those who pose a threat
to society at all costs even at the cost of innocent people. This state
of affairs might indeed be seen as incongruous, in the sense that the
body that is bestowing and guaranteeing the right to privacy, is also
the same authority that seems to be prepared to take risks with this
right; I called this the second paradox above.
In theory, we can accept situations where the membrane between the
private life and the public life can be breached in the case of a threat
to society. On the other hand, as they say in the movies, if you've done
nothing wrong, you've got nothing to worry about.
But as I have just argued, in today's climate, maybe there are reasons
to worry. Maybe, today's rule of thumb might be, if you're not on the
radar screen of some authority, you need not worry. Which today does not
mean, are you innocent, but rather are your credible. (Check the stories
through Google)
Indeed, case law (and Civil law if you must), at least, recognises the
principle of public interest as a justification to breaching the right
to privcy, for example the media are allowed to reveal private
information about people if it is in the public interest. And it might
be argued that what is part of our public life is accessible to everyone
else. Another principle that the media operate under is that if
something or someone is in public than they can be reported as part of
the news or editorial content. And not to get confused here, although
the media can report what is public, that same information (for example
a photo of a person eating an ice cream) cannot be used for commercial
purposes ( the same photo used to sell ice cream).
The big issue is what is the status of those who put themselves in the
public eye, for example, politicians, pop stars, famous actors and so
on? On the one hand these people enjoy certain privileges in society by
being in the public eye; actors make big money, politicians have power
and access to people who command resources and so on.
I guess that the same rules that apply to you and me apply here , even
these people have a right to privacy, but that right, I would argue,
only covers what is considered normal for a private person. But one of
the problems with people in the public eye is that many tend to use
privacy rights to hide what in not normal or misdeeds carried out in the
public domaine.
Now, whether we create laws that make it difficult for the media to
publish photos of people in public (theoretically in France and up to an
extent in Germany) or create super injunctions that prevent the media
even from mentioning the fact that they are not allowed to publish
something (England), the end result is that they serve those who are
corrupt or who abused their position, rather than the average person
going about their lives doing average things.
So the crux of the issue is not so much keeping the private separate
from the public, nor legislating rights which in theory we already enjoy
from birth, but rather when is it alright to breach the membrane?
As I said earlier, the first paradox is that our right to privacy
implies a duty on others. Maybe we can solve this paradox by accepting
that those in power and with authority have no rights but rather duties.
The individual as a private person, of course, have rights, but the
individual acting as a holder of authority has only duties. How
practical this is, is an other matter, but nevertheless the principle is
sound. Those in authority have to justify breaching the membrane rather
than having the right to breach the membrane.
Whatever else we think about the subject, it is evidently clear that the
right to privacy is not something that is legislated since what is
legislated into law can tomorrow be legislated to be taken away by law.
Thus, the right to liberty, and by default the right to privacy, are
inalienable rights, that simply cannot be taken away. And by default
therefore, those in authority have only the duty to protect such rights,
since they have no jurisdiction to bestow such rights; we cannot be
given something we already have.

Take care

*501 Common Differences between Civil & Common Law Jurisdictions

from Lawrence, this Sunday meeting: The membrane between private and
public life

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