Last week was a momentous one for information law. Two dramatic and potentially very significant rulings. The first was the Black Spider memos Freedom of Information case through which it now appears certain that 27 ‘private’ letters from Prince Charles to government ministers will be published. The second was the decision in the Vidal-Hall vs Google case, which may have opened the doors for people whose privacy was effectively being invaded by Google to take action through the UK courts, despite their being unable to demonstrate economic damage from that privacy invasion. I won’t go into the legal details of either: far better legal minds than mine have already done so, the two pieces on the 11KBW blog about the Black Spider letters and Vidal-Hall vs Google respectively explain them really well. Instead, I want to look at one particular issue – the relationship between privacy and power, which is played out in different but related ways in both cases.
Princes, information and power
It is often said that ‘information is power’ – and in the case of Prince Charles’ Black Spider letters that does seem to be the case. Without knowing the contents of the letters – something that may shortly change – it can be assumed that power and information are central to them. The letters concerned – 27 of them – are letters written by Prince Charles to government ministers. The very fact that he wrote them, and could expect to have answers to them, shows that he had power and was using it (at the very least) to get information. He might have been using it to attempt to use that information to influence policy – we may be able to determine that as and when we see the content – but information is central to it. What is more, he knows that if we get hold of the information, he may lose some of his power, and we may gain some power over him – which is, presumably, why he is so keen for them to remain out of the public eye. Information really is power here.
Privacy, in this context, can be seen as control over information – and it is hardly surprising that Prince Charles invoked privacy in his response:
“Clarence House is disappointed the principle of privacy has not been upheld”
Privacy has value – it is a human right – and as an argument against disclosure, it feels better than saying (for example) that Clarence House is disappointed that it wasn’t able to exert its power as effectively as it wished, or that it is disappointed to be about to be losing some of its power. And yet that’s what’s really happening here. People with power have often used privacy as a way to maintain that power, to maintain their control over the situation. Indeed, in the courts, privacy has often been invoked by powerful people – from philandering footballers to secretive celebrities – to keep their lives and loves under wraps. Sometimes that’s entirely right – privacy really is a human right, and we all have that right. It is, however, a right that is held in balance, not an absolute right. It’s held in balance with freedom of expression, with freedom of information – and when looking at surveillance and so forth in balance with interests and needs like security. It is also a right that relates primarily to our private lives – not our public lives, or our professional lives. If we’re talking about professional lives, ideas such as confidentiality are more relevant – not quite the same as privacy, and subject to different checks and balances. Here, this really wasn’t about Prince Charles’ private life: writing to government ministers when you’re the heir to the throne is not a private life issues. I would defend Prince Charles’ right to privacy over letters to his children, his wife, his mother, his friends and so on just as much as I would defend anyone’s right to privacy over their correspondence – but that’s not what this is about.
Ultimately, that’s why the Black Spider Letters are becoming public – because there’s a public interest in our knowing the contents, which is what Freedom of Information is supposed to be about. It’s a redressing of a power imbalance.
The New Princes of the Internet
…which brings us on to Google, one of the new Princes of the Internet, in the Machiavellian sense, and the Vidal-Hall case. Ultimately, this is also about power. The essence of the story is about Google tracking people’s activities on the internet, without their consent – indeed, when they had directly said that they didn’t want Google to track them. Why does Google do this? To get information, and ultimately to get power. They use this information to get power over people – not just over the people they’re tracking, but people generally, as they gather more and more data about people’s behaviour and learn about how people use the internet, what they’re interested in and so forth. That information, those invasions of privacy (for that is what they are) is used for Google’s own purposes – and despite how they often like to appear, Google are not neutral indexers of the net, helping develop systems and services for the betterment of humankind, champions of freedom of speech and so forth. They do do a lot of that – but because by doing so they can make money.
Google are a business, and what they do they do for business reasons – and there’s nothing wrong with that at all. We do, however, need to be a bit more aware of how that works and what the implications of that are. Amongst other things, it means that they will use the information they gather to get power over us – ultimately power to make more money from us, or by using us as tools to make money from others and so on. Again, power is the key, and again, that’s where privacy is involved. They invade our privacy in order to gain power over us, and if we’re able to assert our privacy, to protect our privacy, they lose power.
Privacy for ordinary people
It’s a subtle thing – none of the individual invasions of privacy is particularly significant – but that’s one of the reasons this ruling really is significant. By allowing people to take action even without proving economic loss, it could provide people who usually don’t have power the chance to protect their privacy. As noted above, privacy actions in the past have generally only been a tool for the powerful, not something for the rest of us – this might change that, and that is something that really matters.
Indeed, it could be the most important thing of all. Privacy, like all human rights, is most important as a way to protect those who don’t have power from those who do have power. It shouldn’t be a tool just for the rich and powerful – they already have a vast arsenal of tools at their disposal – it should be something that we can all use. We need privacy from all kinds of powerful entities, from businesses like Google and Facebook to a wide variety of governmental agencies and others.
What’s more, all those powerful entities invoke privacy for themselves to protect their own power. The Snowden revelations have showed how carefully governments have hidden their own actions from our scrutiny – indeed, how they continue to disclose as little of what they do as possible, and continue to ‘neither confirm nor deny’ the existence of many of their actions. Google, Facebook and others expect others to abandon their own privacy – indeed as shown in the Vidal-Hall case, sometimes they just ride roughshod over people’s privacy – whilst keeping their own actions as well hidden as possible. Google’s algorithms remain almost entirely opaque – trade secrets – no matter how often they talk about transparency. At a conference on Friday discussing the ‘Right to be Forgotten’, I asked the Google representative why they hadn’t updated their examples of right to be forgotten cases for almost a year, and the response I got was terse to say the least. They don’t want us to know what they do – while they want to know everything about what we do.
Redressing the privacy imbalance
For me, one of the key roles of the law is to redress this imbalance – to find ways to protect the privacy of ordinary people, and prevent princes – old princes like Charles and new princes like Google – both from invading our privacy and from invoking their own privacy to hold onto their power. In both the Black Spider Letters case and Vidal-Hall vs Google the law seems to have done exactly that, and the courts in both cases should be applauded. Of course there’s a long way to go, and those with power can and do use every means they can to hold onto that power. I fully expect the Black Spider letters to be heavily redacted as and when we finally see them, and Google is apparently seeking permission to appeal the Vidal-Hall case to the Supreme Court.
They may well succeed. Even if they do, the two cases this last week should be seen as victories, and both Prince Charles and Google should be more than a little afraid. Holding onto their power may be a little harder than they thought. I hope so.