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Privacy as a Social Value
By: Jane Bailey

April 24, 2007


The Canadian case law on hate propaganda, obscenity and child pornography features numerous analyses and discussions on the right to privacy, almost exclusively in the context of the privacy claims of those accused of related offences. Shaped as they are by the contexts in which they are raised, these analyses tend to mirror the negative, individualistic, control-over-access-to-information paradigm that has dominated thinking on the issue for several centuries. Notwithstanding that the vast bulk of Canadian legal analysis focuses on the right of an individual accused against state intrusion on a “private” sphere of activity to the exclusion of consideration of the privacy-related rights of the targets of hate propaganda and obscenity, Canadian courts have recognized that child pornography intrudes upon the privacy-related interests of the individual children abused in its production. The failure to recognize that hate propaganda and obscenity trigger similar intrusions for the members of the groups they target does not necessarily mean that no such intrusions are in fact triggered. Instead, the failure to recognize the triggering of those privacy interests might be understood to be the result of the selection of an individualistic privacy paradigm that, by and large, is conceptually inadequate to capture the collective nature of the privacy-related harms that can be occasioned by all three of these forms of expression.

Individuals targeted directly within hate propaganda and obscenity could muster arguments to squeeze the related privacy intrusions they experience as a result of that targeting into the individualistic paradigm, as has been the case with the analysis of the privacy-related intrusions on the children abused in production of child pornography. In the case of hate propaganda, however, the typical modus operandi of hate purveyors avoids attacks on individuals, generally focusing on broad categories. In the case of obscenity, the individualistic control-over-information paradigm, combined with patriarchal presumptions that women can be assumed to have consented to sexual activity and abuse is likely to impose a preliminary threshold of proof of non-waiver. Re-making what are essentially collectively-based claims into individual claims for the purpose of fitting the paradigmatic mould is unlikely, however, to form the basis of a meaningful long-term strategy for equality-seeking groups and their members.

Just as the analyses of privacy in the contexts of abortion and the counseling records and sexual histories of complainants in sexual assault cases have tended to re-personalize political issues, undermine calls for affirmative state action and reinscribe gendered and raced notions of privacy, so too may privacy-based arguments by the direct targets of hate propaganda and obscenity crafted to fit the paradigm. The privacy-related harms of hate propaganda, obscenity and child pornography need also to be understood in the context of social inequalities that allow empowered narratives to constrain the autonomy of otherized individuals by limiting their opportunities for self-definition with presumed, imposed characteristics attributed to the equality-seeking groups with which individual targets are identified. The personal intrusion is integrally and intrinsically related to systemic, group-based power imbalances. Claims framed within the individualistic privacy paradigm are more likely to bury that dynamic than to make it understood. Without that recognition, the potential role for state action to address those imbalances – or at least a call for state action reflecting a conscious choice not to reinforce those imbalances is likely to be ignored.

Rather than trying to fit collectively-based harms into an individualistic paradigm, it may be preferable to re-think the paradigm to encompass collective, social considerations. The seeds for this idea were originally sown within aspects of work by authors such as Westin that were largely sidelined in the wake of an individualistic, libertarian drive against state intrusion. They have since been replanted in the work of authors such as Allen and Gavison who have advocated privacy as a producer of social goods such as better social contributions and relationships. However, the drive to articulate privacy as a social value can be found more directly in the work of authors such as Gandy, Regan and Cohen in the context of rising concern as to the broad-ranging privacy implications of digital data collection and use. As fragmented individual data collected for one purpose is aggregated and re-used in other contexts as the basis for labeling and making judgments affecting individuals’ lives with little or no opportunity for reciprocity, the adequacy of individualistic models that focus on control over access to information has increasingly come under scrutiny.

The push, in the context of digital data collection and use, for recognition of privacy as a public value, a common value and a collective value and the potentially invidious collective forms of discrimination to which its inobservance can give way offers both threats and opportunities for members of equality-seeking groups. To the extent that those accused of offences relating to hate propaganda, obscenity and child pornography would then be positioned to bootstrap their individualistic privacy argument with one premised on societal interests, the competing equality-based interests of the members of target groups may be undermined. On the other hand, thinking collectively about the value of privacy opens up the opportunity to better articulate a more group-based conception of the privacy violation occasioned by perpetuation of group-based stereotypes prevalent in hate propaganda, obscenity and child pornography. It suggests an opening to argue that privacy shouldn’t simply be conceived of as a producer of individualistic goods like free expression, freedom of conscience and liberty, but also the equally important, but too frequently unmentioned democratic right to substantive equality.

The parameters of a collectively-based privacy argument might work from accounts of authors such as Delgado, Crenshaw, Tsesis and MacKinnon on how hate propaganda, obscenity and child pornography can work to impose social constructions of inhumanity on targeted groups that are both externally reinforced and sometimes internalized in a way that undermines their abilities to self-define. To the extent that these effects lead individuals to choose to dissociate or to attempt dissociation from the groups so targeted, both the groups themselves and society as a whole stand to lose - our aspirations for diversity, plurality and mutual respect are undermined.

If hate, obscenity and child pornography are understood in this way, certain aspects of the current push for a social conception of privacy within the context of digital data collection might be usefully analogized. Simplistic data derived from these forms of “expression” are used to render social profiles of targeted groups that become a basis for imposed definitions not only on those groups, but their members as well. These socially constructed definitions then form the basis and justification for discriminatory action and treatment of individual members of those groups that can, in some cases, be internalized within their own processes of self-definition.

The fragments of identity misrepresented in hate propaganda, obscenity and child pornography are used to form the bases for social composites that intrude both upon the definition of self and the understanding of self in relation to group. The social constructions produced authorize privacy intrusions that both reflect and reinforce substantive inequality. For equality-seeking communities, privacy understood entirely as a producer of purely individualistic goods like free expression and liberty has to often been an empty proposition. Privacy understood as a social value and producer of collective goods like substantive equality seems like something worth talking about.
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