Earlier today, Eastman Kodak filed for Chapter 11 Bankruptcy protection. It might well signal the end for a company which was perhaps the single most important player in an industry that revolutionised the world in many ways: the photographic industry. Kodak has been in existence for 131 years, and in that time the world has changed dramatically in many ways – but perhaps not in as many ways as we might think. Kodak was crucial in the history of photography – but it was also crucial in the history of privacy.
Back in the late 19th century, when Kodak introduced the first hand-held camera, that new technology scared a lot of people – and inspired a whole new phase in the legal understanding of privacy. Amongst those alarmed by it were young lawyers Samuel Warren and Louis Brandeis – who went on to write a seminal piece for the Harvard Law Review: “The Right to Privacy”. It was a remarkable piece of work and set into motion a train of legal thought that is still chuffing away to this very day. I remember when I first read it I assumed the date was a misprint: 1890. Surely that must mean 1980? Here’s an extract:
“The intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity so that solitude and privacy have become more essential to the individual; but modern enterprise and invention have, through invasion upon his privacy, subjected him to mental pain and distress, far greater than could be inflicted by mere bodily injury.”
The same debate rages now – and the ‘enterprise and invention’ that was ‘modern’ in 1890 is every bit as prevalent now. Have things really changed? Are the attacks on privacy a ‘modern’ crisis in the 21st century – or are things just the same as they ever were. Here’s some more of Warren and Brandeis:
“Gossip is no longer the resource of the idle and the vicious, but has become a trade, which is pursued with industry as well as effrontery. To satisfy a prurient taste the details of sexual relations are spread broadcast in the columns of the daily papers. To occupy the indolent, column upon column is filled with idle gossip, which can only be procured by intrusion upon the domestic circle.”
Lord Justice Leveson might well say something very similar when his inquiry into the culture, ethics and practice of the press comes to its conclusion. Phone hacking may be the latest form of ‘intrusion upon the domestic circle’ but in many ways it’s not that different from the tactics that have been used by the press (and others) for well over a century, as Warren and Brandeis made very clear.
So has much changed? Or is this all just human nature, and we need to ‘grin and bear it’. Has the technological development of the last 120+ years had a significant effect? Here’s a little more of Warren and Brandeis:
“Even gossip apparently harmless, when widely and persistently circulated, is potent for evil.”
The internet, by its very nature, gives a far greater opportunity for wide and persistent circulation of gossip – but once again, it’s not qualitatively different from what Warren and Brandeis were concerned about. The tools are more efficient, the mechanisms more generally available, and the scale larger, but isn’t it the same problem, just writ a bit larger? The other side of the coin, however, is also, in my opinion, true. Privacy isn’t a problem that’s going away – and it’s not, despite the suggestions of the likes of Mark Zuckerberg, something that’s no longer a social norm. The ways in which Warren and Brandeis’s piece, written more than 120 years ago, seems to fit so well with current practices and current concerns suggests precisely the opposite. Privacy is still an issue – and it will in all likelihood remain an issue forever. They were right to be concerned about it – and right, in my opinion, that we have a right to privacy. We had it then, and we have it now – not an absolute right, not a right that overrides other competing rights such as freedom of expression, but a right that needs to be considered, and needs to be fought for. That fight will go on… as it always has.