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Protecting privacy often comes into conflict with the desire to safeguard free speech and nowhere is that more evident today than on the Internet. In The Future of Reputation, author Daniel Solove discusses the damage that can be caused by gossip and false accusations in forums such as blogging and why new laws may be required.
Also See:
How Non-Verbal Communication Affects Business
How To Exploit Customer Data
By Ellen Pearlman
Strategic Thinker:
Daniel Solove
Credentials:
Solove is associate professor, George Washington University Law School and an expert in privacy law. He is the author of numerous books and articles, including The Digital Person: Technology and Privacy in the Information Age. An article in the Wall Street Journal said Solove is "one of the few who truly understand the intersection of law and technology."
Big Idea:
The Internet requires us to rethink the balance between the protection of privacy and the right to free speech.
Book:
The Future of Reputation: Gossip, rumor and privacy on the Internet, published by Yale University Press, October 2007
Blog:
Solove blogs
On December 15, 1791 the first amendment to the Constitution-that protects our right to freedom of speech-was ratified. In the 217 years that have ensued, the courts have frequently had to interpret that right as issues about obscenity, libel, pornography and other such topics raised challenges that needed resolution. But we're still babes in the woods about this subject given the widespread use of the Internet and the ease in which gossip and rumor are now spread globally.
"Protecting privacy can come into tension with safeguarding free speech," says George Washington University Law Professor Daniel Solove. He cherishes both rights and tries to sort through this conflict in his book The Future of Reputation. In fact, the need for this book only came to him after he started blogging and realized how people could be damaged by gossip and rumor spreading over the Internet. The issues are complicated and Solove sees room for new laws and societal norms. Not only do individuals need to understand how to protect themselves, businesses need to be cognizant of what they should and should not do on their websites.
Solove provides many fascinating examples in his book of how social reputation is being transformed as gossip and shaming move online. An accusation, an unflattering video, an outright lie can now live permanently online and be searchable for anyone to find in the future. This makes it hard for people to have control over their reputations. Moreover, sometimes we're our own worst enemies, providing intimate details of our own lives in our blogs or profiles on various sites that we erroneously think will remain private. In a 2005 survey, 81 percent of respondents said they used some form of self-identification on their blogs and 25 percent said they posted very personal details.
Current law tends to side with free speech, leaving privacy unprotected, says Solove. Existing law, he explains, is thought of in a binary way: It is either public or private. If something happens in a public place, it is not private. But given today's electronic communication methods, a binary view is outdated. Our activities often take place "in the twilight between public and private," says Solove. For example, your telephone conversation can now be carried out in public places. Should someone sitting next to you on a train have the right to record your call and make it available online? Yes, you are in a public place, but you don't expect your private call to be broadcast via the Internet. Moreover, an unflattering event that occurs in a public place and is witnessed by a few people can now be captured on video, posted to YouTube and viewed by millions of people. What a few witnesses would have considered a social transgression in the past, now becomes a disgrace viewed and discussed by masses of people. It may never be forgotten.
The Internet "makes gossip a permanent reputational stain," says Solove. And since reputation plays such an important role in our lives, the law needs to be responsive to finding new ways for people to protect it in the digital age without stifling free speech.
"Disclosure made for spite, or to shame others, or simply to entertain, should not be treated the same as disclosures made to educate or inform," he says. He believes it is imperative to address the issues raised by "the marriage of traditional gossip to the technology of the Internet." But how do we go about it? Solove presents some suggestions about what the law can and should do.
First of all there are three basic legal approaches: the libertarian approach (hands off), the authoritarian approach (use censorship and strict controls to halt the spread of problematic information), and a middle ground approach-which Solove favors. A middle ground approach would help shape the norms that govern the circulation of information, says Solove, and ensure that people understand the "dramatic difference between gossip offline and online."
One middle ground approach for resolving disputes is tort law or lawsuits. But defamation law and invasion-of-privacy torts would need to be broadened to reflect privacy on the Internet, says Solove. Appropriation and public disclosure are the most relevant privacy torts in this regard. Appropriation protects against the use of a person's name or likeness for the benefit of another. And public disclosure provides a remedy when someone widely discloses another person's private information when that information is highly offensive and not of legitimate concern to the public. But courts typically restrict these privacy torts if they impinge on free speech and courts often throw out lawsuits because they don't recognize a privacy violation, says Solove.
Lawsuits are "frightful monsters," says Solove because they are costly, traumatic and often result in further publicity for the privacy violation. Often people resort to them because there are no other good options. Solove believes the goal of the law should be to encourage informal attempts at resolving privacy disputes. The law should also "encourage websites to develop a process by which problems can be adjudicated and resolved, where bad information can quickly be taken down, and false statements corrected," he said. And in cases where problems have already spun out of control, Solove believes the law should create incentives for parties to go to a mediator or arbitrator rather than to court. This would cut costs and allow disputes to be settled faster. Another solution may be to limit damages and steer litigation toward these quicker and less costly resolutions. "The law should cast a wider net," says Solove, "yet have a less painful bite."
Blogging raises another important issue regarding free speech and privacy. Bloggers should have the right to talk about their own lives, but people talked about in a blog should also have the right to sue if intimate details are revealed that are not of legitimate concern to the public. The law currently looks at whether the information is newsworthy in determining violations, but Solove believes a better approach would be for the law to pay attention to "who is divulging the secret." A person should be able to talk about her own life online, even if it's not newsworthy, but it should be done responsibly. In other words, people need to be held accountable for what they say about others. Since the line is blurring between amateur and professional journalists online-both have the power to reach large audiences-bloggers should be held to a "reasonable standard of care," says Solove.
In 1996, Congress passed Section 230 of the Communications Decency Act, immunizing ISPs and hosts of online forums from liability for the speech of their users. But if an ISP or website knows a post is defamatory and they are asked to remove it and don't should they still be protected? Solove believes that broad immunity is the wrong incentive and fosters irresponsibility. The solution, he says, is to "create a system for ensuring that people speak responsibly without the law's cumbersome costs." This task is not easy, he admits, but necessary if we are to protect both privacy and free speech.
Law must evolve in the digital age to recognize privacy concerns in a public arena and to provide a remedy for gossip when it is widely spread or made permanent. Gossip can "spiral out of control" on the Internet, says Solove. "Therefore, the law should view the placing of information online as a violation of privacy." However, figuring out how much control people should have over their information is tricky. "Too much control," says Solove, "can be just as bad as too little."
Next: New Privacy Rules for the Digital Age
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