The Right to Silence

In 1994 I completed a thesis for a Master of Jurisprudence degree. The title of the thesis was “The Silence of the Lambs: Innocence, silence, self-incrimination and proof burden in the Adversarial/Accusatorial Criminal Trial.” The thesis covered 300 pages including bibliography – a total of 134,821 words. It was a very detailed study.

Every so often the right to silence and aspects of self-incrimination arise in the course of discussions about our legal process. Recently there have been calls to consider getting rid of the right to silence either in the context of police investigations or as an overall concept. The Commissioner for Children, Andrew Becroft, wrote in the Herald about his proposals for modifications to the right to silence. His proposal is in line with powers that the Serious Fraud Office possesses.

This post addresses a wider issue.

What follows is a selection of parts of the thesis. It is important to understand what it is that we are talking about, and how the concepts of the privilege against incrimination and the right to silence fit within the accusatorial/adversarial criminal trial process. My final conclusion is that in fact the wrong question is being posed. Those who favour the abolition or abrogation of the right to silence really need to ask “what sort of criminal investigation and trial process do we want.”

From an historical point of view, the right to silence and the privilege against self-incrimination seem to have developed from the same essential concept but in fact reflect two distinct and separate principles. The phrase nemo tenetur seipsum prodere[1]was used more and frequently throughout the seventeenth century. The clear concept was that an individual could not be required to be a witness against himself in the sense that he should not be asked questions which could provide evidence of or form the basis for a criminal charge[2]. However, at common law it had been a principle for centuries that an accused person was unable to give evidence in court on oath[3] and, indeed, this situation continued until 1898. That principle is summed up in the maxim nemo debit esse testis in propria causa [4].

It is my contention that in fact the two concepts are separate and distinct and cannot be used synonymously[5].

A difficulty seems to have arisen in treating silence in the face of questioning by officialdom (but not under oath or other form of compulsion) as an invocation of the privilege against self-incrimination. Without extending the adversarial process to the point of investigation[6] such an application of the privilege is unsustainable.

Some writers have expressed difficulty with the application of the right during official questioning or at trial, and have totally ignored the situation pertaining to a witness other than the accused or the impact of the obtaining of incriminating evidence which may be derived in civil or other investigative or inquisitorial proceedings.

The nemo tenetur maxim protects a person who may have committed or be suspected of a crime or offence in two respects. First, that person need not give any information to investigative authorities which may incriminate[7] him – that is which may give the authorities sufficient evidence from his own mouth alone to accuse him or to bring a charge. Self-incrimination was seen as objectionable because it essentially was a form of self-accusation, rather than accusation from another source.

Secondly the significance of the concept of “privilege” is  highlighted not by its existence but by its abrogation. A line of cases in England illustrates where in certain situations provided by statute, evidence derived in one forum which may be incriminatory and obtained by a form of compulsion, may potentially be used in criminal proceedings[8].

The right that reposes in an accused person at trial arises, from the nemo debit maxim. The right to silence at trial – that is to sit back and put the prosecution to the proof of its case – is grounded both upon the nemo debit  maxim and also upon the burden of proof being upon the accusing authorities to prove the charge which has been laid.

Historically there may have been collateral issues involving the likelihood of self-incrimination arising from cross-examination, but it is my clear view that they were collateral only, having regard to the much older concept of disqualification for interest, and the old concept that an accused could not be sworn to give evidence at his trial. The position now is that an accused who elects to give evidence accepts that risk, for he may be cross-examined. Yet he still retains the right to remain silent in the face of his accusers.

In my view, the distinction between the rights that I have described above and what is called the privilege against self-incrimination is highlighted by the example of the witness, (who can be compelled to give evidence as opposed to the accused who cannot), giving evidence in the course of a trial and may be asked a question the answer to which may be self-incriminatory in that it provides an acknowledgement of participation in another unrelated offence. In such a situation that witness is entitled to be warned that he need not answer on the grounds that he may incriminate himself. Thus, in adopting such a course of action, the witness is availing himself of a privilege that arises in the course of his giving evidence in respect of which he is compellable.[9]

It is clear that the definitional waters have become muddied[10] and the terms have become interchangeable.

One problem seems to be in the interchangeable use of the word “right” on the one hand and “privilege” on the other. Although what is generally known as the “right to silence”  has one of its foundations in the principle that a person should not provide the foundation for an accusation against him or herself, the specific right to silence at trial  is based on a more fundamental principle associated with the burden of proof coupled with the historical premise of nemo debit.

The right to silence in the face of investigative questioning is partially grounded on the concept of non-self accusation but it is also based on the historical loathing of the English common law for torture and with judicial disapproval of compulsion, coercion and lack of voluntariness in the obtaining of an incriminating statement.

The true “privilege against self-incrimination” attaches to a person who is compelled to give evidence and may suffer a penalty imposed by a legal authority[11]for failure to answer. That privilege may attach to a person who may not have been charged with an offence or who may be subject to a charge.

In granting to an accused a right to give evidence at trial, an issue arose regarding cross-examination, which would directly impinge upon the privilege against self-incrimination. The right to give evidence carried with it a concomitant obligation to subject oneself to cross-examination without being able to raise the privilege against self-incrimination.

I suggest that the categories may be reduced in the following way:

1. The Right to Silence being:

(a) The right to maintain silence at trial which is a specific right attaching to an accused. It is derived from the nemo debit principle, the concept of disqualification for interest, and the prosecutorial burden of proof. It contains implications for the privilege against self-incrimination and for the burden of proof if it is abrogated.

(b) The right to maintain silence in the face of investigative inquiry. This is a general right available to all and is based on  privacy, the burden of proof of an offence resting upon the accuser and the sanctity of the individual from coercion, compulsion or unfairness on the part of investigative authorities. If there is to be an inculpatory statement made it must be as the result of the free exercise of choice. There is no historical basis for claiming the nemo tenetur principle having regard to the use of the enquiry conducted by the Justices of the Peace following the passage of the Marian Statutes, and the fact that the privilege against self-incrimination was not invoked.

2. The privilege against self-incrimination which is a general privilege available to any witness who is compelled[12]to give evidence on oath and who, if he or she does not refuse to answer, may give evidence which may incriminate that witness and lead to a penalty, and where failure to answer may attract a penalty which may be imposed by law or by an authority having the power to impose a penalty[13].

To summarise my contention on the matter, there is a right reposing in all citizens to remain silent in the face of investigative interrogation and to refrain from giving verbal information which may result in self-incrimination.

There is a right reposing in all citizens standing trial before a jury or a judge alone to remain silent throughout the trial and refrain from giving evidence in answer to the evidence brought by the prosecution.

There is a privilege reposing in witnesses (other than an accused) who are called at a trial or some other hearing or inquiry to give evidence to refuse to answer questions which may involve self-incrimination[14].

Our criminal system is that of an accusatorial/adversarial model. Critics of the privilege have professed an allegiance to this model of criminal proceeding, together with its presumptions and allocation of proof burdens and standards. It is therefore a matter of concern to read the critics condemn the privilege and the right to silence as the shelter of the guilty. In the rigorous legal sense that cannot be the case. A person is not guilty until he or she has been found guilty or has pleaded guilty. If a person has remained silent and is guilty, by a strict application of the presumption of innocence, that person must have been found guilty. That finding must have taken place absent any evidence from the accused.

The question falls to be answered – how then has the system suffered as a result of the right to silence? If, however, a slightly less rigorous approach is being adopted by the critics, and their argument is that people are guilty who have not been convicted at trial, and that this has been as a result of the exercise of the right to silence, the question falls to be answered – what value do the critics then place upon the presumption of innocence?

The point that this makes is that one cannot view an issue such as the right to silence in a vacuum from other parts of the criminal legal process. Although those who classify the right to silence and the privilege against self-incrimination within the category of evidence do so because it has certain evidential ramifications, such a classification fails to view the right to silence and the privilege against self-incrimination as a part of the matrix of the entire criminal process. It is inextricably bound up with fundamental precepts of the criminal process – the presumption of innocence and the burden of proof – along with other matters of an evidential nature as well.

Although the right to silence is a convenient target, and may, in the minds of the critics, be easily separated from the criminal process without doing violence to the integrity of the process as a whole, it is my conclusion that such a course of action is not possible. Although the criminal process has developed to its present point in disparate ways, and in response to different stimuli, it is, nevertheless a settled matrix of fundamental principles. To disturb any one of those will render the shape of the matrix to quite a different one from that which we recognise today.

If the critics of the right to silence were to carry the matter to its logical conclusion, the question that they should ask is “what fundamental model of the criminal process do we want” and address the issue of the burden and standard of proof and the inquisitorial system as opposed to the adversarial\accusatorial model.

The privilege is built into the adversarial\accusatorial model. If the right to silence were lost and the accused were required to answer or risk adverse inferences the trial process would shift to an inquisitorial system with its complex of shifting proof burdens.

There may indeed be an argument for an inquisitorial system but if a simple solution of attributing evidential weight to silence or allowing adverse inference to be drawn from silence were adopted, we would be left with unfavourable aspects of the inquisitorial system without any of the protections for an accused that such a system may offer. As I have suggested, the matrix would be destroyed. The whole focus of the trial would shift to the accused and an assessment of his or her case rather than the focus remaining upon the prosecution case. Quite clearly, the burden of proof would be affected. The accused’s account, or his failure to give one becomes the focus and centre of the trial, rather than the strength or weakness of the prosecution case.

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[1] No one is bound to become his own accuser.

[2] Especially in circumstances where there was little or no other evidence and in circumstances where prosecuting authorities were anxious that evidence of a confessional nature be provided and available.

[3] Although in criminal trials an accused was expected to speak and engage in dialogue and verbal contest with prosecution witnesses in what Professor Langbein describes as the “accused speaks” trial.

[4] No man should be a witness in his own cause.

[5] Although the privilege against self-incrimination is referred to by Lord Mustill in Smith v Director of Serious Fraud Office [1992] 3 All ER  456, 463 as aspects of a disparate group of immunities gathered together under the heading of “ the right to silence”.

[6] As was the case in Miranda v Arizona 384 US 436 (1966)                             

[7] “Incriminate” is defined in the Shorter Oxford English Dictionary as “To charge with a crime; to involve in an accusation or charge”.

[8] Without any form of protection for the witness in the way in which the evidence may be used directly or the way in which the evidence given may lead an investigative body to uncover evidence indirectly.

[9] The distinction of witness privilege as opposed to the right to silence that reposes in an accused person at trial is clarified and supported by Mr. Justice deCordova Rowe in How Valid is the Right to Silence at Criminal Law (1990) Commonwealth Law Conference Papers 267. However, Mr. Justice Vincent describes the title to his paper as  The Right to Silence Revisited Again (1990) Commonwealth Law Conference Papers 263 when in fact it deals primarily with investigative interrogation which involves issues of self incrimination based on the concept of prodere.

The true nature of the privilege is further exemplified in the English cases to which I have referred, especially R v Kansal [1992] 3 All ER 844 and Bishopsgate Management Ltd v Maxwell [1992] 2 All ER 856.

[10] I shall not inject a further element of confusion into what is largely a conceptual discussion by referring the Fifth Amendment to the Constitution of the United States which has elevated the privilege against self-incrimination to a constitutional right.

[11] Such as a penalty for contempt, which could include loss of liberty.

[12] By subpoena or otherwise.

[13] The privilege is available to an accused who faces charge A, but can claim the privilege when cross-examined about an unrelated allegation B at his trial on charge A.

[14] All subject, of course, to statutory abrogation.

Forgetfulness and the Clean Slate – Collisions in the Digital Paradigm IX

Introduction

The law of obligations, in a most general sense, is the subject of civil disputes that arise between individuals or corporate bodies. Obligations may arise from the common law or from statute. But apart from providing a forum for the resolution of these disputes – the Courts – the State plays little or no active role.

The situation is different with offences created by statute for which a penalty is provided. In a most general sense these are described as crimes but from a purely literalist perspective, crimes are only those offences created by the Crimes Act 1961. Of course offences like dealing in or importing Class A drugs, offences against the Misuse of Drugs Act carry with them penalties as severe as those prescribed under the Crimes Act.

In essence what underlies an offence is that the behaviour prohibited falls below the bottom line of acceptable behaviour in a society, and which society deems should be the subject of prosecution by the State on behalf of the community. The penalties imposed by law following upon a conviction reflect the odium with which society views the behaviour.

The gravity of the behaviour is often measured by the nature of the penalty imposed and the way in which offences may be classified. Crimes as set out in the Crimes Act 1961 involve offences where the penalty of 1 year’s imprisonment or more may be imposed. Offences under the Summary Offence Act 1981, dealing with matters such as disorderly behaviour or low level assault or threatening behaviour carry penalties of a fine or a short term of imprisonment – up to 3 months for most although 6 months imprisonment is the maximum for Summary Offences assault.

The Land Transport Act also has offences involving the use of motor vehicles which carry penalties of fines, imprisonment and disqualification from driving. There is a graduated scale of penalties of potential imprisonment and disqualification for repeat drink drive or driving while disqualified offenders.

And it must be noted that with certain very limited exceptions a penalty cannot be imposed without a conviction being entered. The entry of a conviction of itself carries a certain stigma. Overseas travellers will be familiar with immigration documents that ask whether or not the traveller has been convicted of an offence and different countries have different policies about who they will let in who have been convicted a certain offences. Convictions for offences may also affect an individual’s job prospects, or how and to what extent he or she may engage in community activities. The presence of a conviction carries its own stigma.

By the same token a conviction sends a message about an individual. A person who has repeat offences for dishonesty demonstrates a tendency towards dishonest behaviour. Would that particular fox be placed in the henhouse of a banking job or a position where an accounting for money was required. On the other hand, youthful indiscretions – disorderly behaviour by a group of students celebrating their graduation – may be the only blot upon an otherwise clean copybook. Should a person who leads an exemplary life for years after some stupid low level misbehaviour that amounts to an offence, carry that mariner’s albatross for the rest of his or her life.

The Clean Slate Act

The Criminal Records (Clean Slate) Act 2004 sets up a clean slate scheme. Under the clean slate scheme an eligible individual

(a) is deemed to have no criminal record for the purposes of any question asked of him or her about his or her criminal record; and

(b) has the right to have his or her criminal record concealed by government departments and law enforcement agencies that hold or have access to his or her criminal record.

The Act is not that easy to understand but eligibility is the key component. Eligibility is acquired under section 7 and requires a number of boxes to be ticked. Shortly summarised these are

• There must be the completion of a rehabilitation period and
• No custodial sentence has ever been imposed; and
• No orders have been made under legislation dealing with mental competence issues and criminal liability and
• The person has not been convicted of a specified offence set out in section 4 of the Clean Slate Act; and
• Where a fine or reparation has been imposed, those amounts have been paid; and
• In the case of an order for compensation, that amount has been paid or remitted and
• No order for indefinite disqualification has been imposed.

Perhaps the most critical aspect of the above criteria if the definition of a rehabilitation period. In relation to an individual, that means any period of not less than 7 consecutive years after the date on which the individual was last sentenced, or a specified order was last made, in which the individual has not been convicted of an offence. Thus a rehabilitation period is 7 consecutive years without reoffending.

Interestingly enough the Act is silent on what offences qualify for clean slate protection. It is NOT silent on the offences which do not qualify and those specified offences involve a range of sexual and indecency offences. Thus it is possible that a person who is convicted of burglary and who fulfils all the criteria list above could claim clean slate protection. What is difficult for many is where a custodial offence has been imposed, not necessarily for the particular offence but for any offence, or where an order for indefinite disqualification has been imposed. To qualify for clean slate protection a person must fulfil each of the seven criteria.

The Effect of the Clean Slate

Section 14 provides in detail the effect of the Cleans Slate.

• If an individual is an eligible individual, he or she is deemed to have no criminal record for the purposes of any question asked of him or her about his or her criminal record.
• An eligible individual may answer a question asked of him or her about his or her criminal record by stating that he or she has no criminal record.
• Nothing in subsection 1 or 2 above—
• prevents an eligible individual stating that he or she has a criminal record, disclosing his or her criminal record, or consenting to the disclosure of his or her criminal record; or
• authorises an individual to answer a question asked of him or her about his or her criminal record by stating that he or she has no criminal record if the question is asked—
• under the jurisdiction of the law of a foreign country while an eligible individual is outside New Zealand; or
• while he or she is in New Zealand but relates to a matter dealt with by the law of a foreign country (for example, a question asked on an application form by the immigration or customs agency of a foreign country).

It will be noted particularly that the Clean Slate provisions really only are effective in New Zealand. A person cannot invoke the Clean Slate provisions if they are entering a foreign country where a question is asked about previous convictions. In those circumstances, convictions must be disclosed.

It should also be noted that section 19 sets out specific exceptions to the applicability of the Clean Slate regime.

Publication and the Clean Slate

The Clean Slate Act – sections 9 and 10 – allows individuals to apply to the Court for exemption from the rehabilitation period or that a conviction be disregarded in certain circumstances. Section 13 of the Act prima facie prohibits publication of the name of an applicant for such exemptions or any particulars leading to the identification of the applicant. However these details may be published in certain limited circumstances.

If a person has access to criminal records and discloses the criminal record of an eligible person a finable offence is committed.

If the person requires or requests that an individual—

• disregard the effect of the clean slate scheme when answering a question about his or her criminal record; or
• disregard the effect of the clean slate scheme and disclose, or give consent to the disclosure of, his or her criminal record

then a finable offence is committed.

The Right to be Forgotten

When the applicability of the European concept of the right to be forgotten is discussed in the context of New Zealand, the Clean Slate Act is advanced as an example. However, the Clean Slate Act in some ways goes further than the Google Spain decision. Remember, Google Spain was about deindexing Mr Costeja-Gonzales name from associations with a public notice that appeared in the La Vanguardia newspaper. It did not eliminate the article – the primary information – itself.

The Clean Slate Act goes well beyond that. It effectively gives a right to be forgotten in the sense that the eligible individual does not have to disclose a previous conviction if it falls within the Act, can effectively deny such conviction exists although the power of disclosure remains with the individual. This means that the Act allows the eligible individual to redefine him or herself in respect of facts of earlier criminal conviction.

As the law stands at the moment, the power lies with the individual to disclose or not disclose. In that respect the eligible individual controls the right to be forgotten. However, the disclosure of the criminal conviction of an eligible individual amounts to an offence only if it is made by a person who has access to criminal records and a criminal record is defined as a record kept by or on behalf of the Crown. Information acquired by newspapers in the course of Court reporters, bloggers or website hosts who publish cases, naming an individual who has been convicted, and who subsequently becomes eligible, commit no offence.

Publicists in that case commit no offence by publishing the name of a person appearing before the Court contemporaneously with the event. The problem has now become (and was on the horizon in 2004 when the legislation was enacted) associated with the preservative power of digital technologies and the concept of the document or information that does not die. A Google search may reveal the name of an eligible person and hyperlink to the blog, website or online newspaper. So should there be deindexing of the names of eligible persons where the linked to sites contain information about previous convictions? Or should the source information be taken down?

There are a number of thorny issues surrounding this including freedom of the press, the neutrality of Internet based searches along with the underlying integrity of the Clean Slate Act. And this problem has come to the attention of the Privacy Commissioner.

Privacy Concerns

The concerns of the Privacy Commission are expressed in the following way:

A number of newspapers in New Zealand have a practice of publishing the names and conviction details of everyone prosecuted in the local court. This includes those convictions covered by the Clean Slate Act.

This effectively nullifies the intended effect of the Act for these people, as most newspapers are now online as well as in print. A quick Google search for someone’s name can unearth details that were suppressed by the Clean Slate Act.

Further, the newspapers that publish the details of petty crime tend to be in smaller towns, as it’s impractical for larger metropolitan newspapers to print the details of every conviction. So the Clean Slate Act effectively increases the consequences of relatively minor offences for people who live in small towns. This does not seem fair, particularly in the context of the economic opportunity gap between urban and rural New Zealand.

This issue is one of the loose collection of issues covered by the still-developing idea of the “right to be forgotten,” which we wrote about in 2014.  That is, the idea that some public information might become private after a certain amount of time has passed.

The Clean Slate Act was one of New Zealand’s first “right to be forgotten” laws. Perhaps it is time to look at what responsibility media have to let people move on. If a quick Google search is all it takes to find someone’s past transgressions, then in practical terms, their slate isn’t very clean at all.

 Concluding Thoughts

This post is not a critique about the policies behind the Clean Slate Act nor is it part of a newly heralded debate about a review of that legislation. Rather my purpose is to raise a few issues that need to be considered.

The first is this. Removing information from the Internet is at best an inadequate solution. The information may be located in a number of places and the disseminatory qualities of digital technologies mean that the information may be removed from an online news site, but it may still be available on social media platforms, possibly YouTube or on any one of a number of blog sites. So the effectiveness of the proposal is an issue that must be considered.

The second issue is whether or not the obscurity that is sought by removal of online content will achieve its objective. Newspaper archives and hard copy retains the information, albeit in a form more difficult to access than that placed on the Internet.

The third issue is one to which I have already referred. Freedom of the press and the associated right of the public to know the business of the Courts as an arm of Government per medium the newspaper as proxy is a jealously guarded right and one which will not be easily yielded by the news media. Newspapers provide an important record of community activities from an historical and social point of view in addition to their role as public surrogates. The information that they contain is of continuing interest. And it must be remembered that the Clean Slate Act vests the right of invocation in the hands of the eligible individual. It does not prohibit enquiry by a third party into a person’s past of sources other than the eligible person.

And that gives rise to a fourth issue and it is that a freedom of expression – the right guaranteed under the New Zealand Bill of Rights Act to impart and receive information. Care  must be exercised if interference with that right is contemplated.

So what is a person to do – someone who is eligible to invoke Clean Slate but whose previous conviction is on a newspaper website and who, as a consequence, is finding it difficult to get a job. If the circumstances are such that the person is caused harm – serious emotional distress – as a result of continued frustration in finding a job – the provisions of the Harmful Digital Communications Act could be available and, if all the criteria are satisfied may beinvoked. Truth is not a defence to a takedown order under that Act and it may well be that the initial intercession by the Approved Agency will arrive at a satisfactory result.

Whatever follows from this interesting but controversial proposal will be an interesting debate and one which once again will match existing social policy with the realities of the Digital Paradigm

Kids, Privacy and Social Media

In mid-December 2002 Mrs Marie Hosking, recently separated from her broadcaster husband, was photographed walking her children down a street in Newmarket, a suburb in Auckland. The photographer in question was one Simon Runting who had been commissioned by a woman’s magazine to take the photos for a proposed article. Both Mr and Mrs Hosking were very protective of the privacy of their children. They were entitled to their privacy. So Mr and Mrs Hosking commenced proceedings.

First they had to establish that there was a cause of action – a tort or civil wrong based around a right to privacy.

Secondly, if such a cause of action was available, did the circumstances of the case fall within it which would allow the Court to provide a remedy.

A full Bench of the New Zealand Court of Appeal agreed that New Zealand law recognised a tort of invasion of privacy. Tipping J expressed the tort in summary as follows:

I would therefore summarise the broad content of the tort of invasion of privacy in these terms. It is actionable as a tort to publish information or material in respect of which the plaintiff has a reasonable expectation of privacy, unless that information or material constitutes a matter of legitimate public concern justifying publication in the public interest. Whether the plaintiff has a reasonable expectation of privacy depends largely on whether publication of the information or material about the plaintiff’s private life would in the particular circumstances cause substantial offence to a reasonable person. Whether there is sufficient public concern about the information or material to justify the publication will depend on whether in the circumstances those to whom the publication is made can reasonably be said to have a right to be informed about it. (Hosking v Runting [2005] 1 NZLR 1 at para [259]

However, although the Hoskings were successful in establishing that there was a right to privacy which could be invaded, the Court held that in this case there was no expectation of privacy and they failed to establish a breach of privacy. As Tipping J succinctly put it

I am of the view that neither Mr and Mrs Hosking, nor the children themselves, had a reasonable expectation of privacy in the photographs in question. They were taken in a public place. There is no evidence which satisfies me that publication would be harmful to the children, either physically or emotionally. There is, in my view, no greater risk to the safety of the children than would apply to a photograph of any member of society taken and published in a similar way. Any other conclusion would be based on speculation rather than reasonable inference from evidence. I doubt whether many members of society would regard the Hoskings as having expectations of privacy in current circumstances in respect of their children. I cannot accept that any such expectation as might be held would be reasonable in all the circumstances. I cannot see how it can reasonably be said that publication of these photographs should be regarded as likely to cause substantial offence or other harm to a person of reasonable sensibility. (Hosking v Runting [2005] 1 NZLR 1 at para [260]

The facts of Hosking’s case were clear and not in dispute and involved a claim against another actor for privacy infringement – the photographer was a person who was entering what Hosking claimed was a zone of privacy for the children and intended, by publication of the photos, to extend that zone to a wider audience. The case fell upon the fact that in a public place – a street – there is no expectation of privacy.

The Internet and Social Media present a set of circumstances which challenge the use and control of personal information.

One phenomenon that has attracted some publicity is that of parents who place details of their family life on-line and especially include photographs of their children. Now this seems to run entirely counter to the approach of the protagonists in Hosking v Runting who wanted to keep their children OUT of the public eye.

Two recent articles highlight the issue.  One – “The Rise of the Instamums”  is about a number of individuals who place carefully selected and curated photos of their children online and who manage to make a bit of money in the process with endorsements and product placement. The other, from Australia – “How Roxy Jacenko Inadvertently Became a Pin-Up Girl for Oversharing on Social Media” – demonstrates the dangers that may arise.

Like anything that is posted on social media, once it is there, it is there – the concept of the document that does not die.

The other issue is that once content has been posted, one loses control of it, so that it may be modified and doctored, as was the case with images of Ms Jacenko’s daughter Pixie.

Ms Jacenko, a PR consultant, has been criticised for commercialising her child, but apart from that there seem to be a number of other issues which arise particularly in the context of privacy which need to be considered.

Control and privacy is particularly relevant. Privacy is all about what information or aspects of one’s personal life one is prepared to disclose or share with others. There may be a number of reasons for disclosing such information, much of it to do with self-image, definition, how one wants to be viewed in society and the like. Social media may interfere with that significantly. Images of children, posted for the purposes of pride or as a form of journal of a child’s progress  may be hi-jacked for nefarious purposes (or worse). They may serve to identify a child and possibly provide associated information that may help to locate a child who may be of interest to one who, shall we say, has other than the best interests of the child at heart.  And then the photos can be used for revenge or harassment or abuse.

One hesitates to draw an analogy between the on-line and the real word – they are so different – but it has been observed that posting pictures of children online is the same as walking down a street passing out those pictures to complete strangers. When viewed in that light the posting of photos of children online takes on a different and indeed somewhat sinister dimension.

A propos of the “document that does not die” life for all of us goes on. The carefully curated photos of a child posted by a proud parent may, in a few year’s time, become a considerable source of embarrassment as the child grows into maturity. The photos could become the source of taunts, shaming or cyberbullying. It is doubtful that the target of such behaviour would relish the presence of his or her pictures on-line.

Given the ability to search out information within this everlasting informational context, it may well be that New Zealand law will have to develop a “Right to be Forgotten” to enable these kids as adults to attend to their own self-definition.

Privacy for children is something about which  Mr and Mrs Hosking were concerned. The Court held that there was no expectation of privacy in a public street. Likewise, there is no expectation of privacy on a social media site. Perhaps kids should have that private space within which to grow and develop. And then they can make the choice about whether photos of them remain in the family album at home or online.

Back to the Future – Google Spain and the Restoration of Partial and Practical Obscurity

Arising from the pre-digital paradigm are two concepts that had important implications for privacy. Their continued validity as a foundation for privacy protection has been challenged by the digital paradigm. The terms are practical and partial obscurity which are both descriptive of information accessibility and recollection in the pre-digital paradigm and of a challenge imposed by the digital paradigm, especially for privacy.  The terms, as will become apparent, are interrelated.

Practical obscurity refers to the quality of availability of information which may be of a private or public nature[1].  Such information is usually in hard copy format, may be indexed, is in a central location or locations, is frequently location-dependent in that the information that is in a particular location will refer only to the particular area served by that location, requires interaction with officials or bureaucrats to locate the information and, finally, in terms of accessing the information, requires some knowledge of the particular file within which the information source lies. Practical obscurity means that information is not indexed on key words or key concepts but generally is indexed on the basis of individual files or in relation to a named individual or named location.  Thus, it is necessary to have some prior knowledge of information to enable a search for the appropriate file to be made.

 Partial obscurity addresses information of a private nature which may earlier have been in the public arena, either in a newspaper, television or radio broadcast or some other form of mass media communication whereby the information communicated is, at a later date, recalled in part but where, as the result of the inability of memory to retain all the detail of all of the information that has been received by an individual, has become subsumed.  Thus, a broad sketch of the information renders the details obscure, only leaving the major heads of the information available in memory, hence the term partial obscurity.  To recover particulars of the information will require resort to film, video, radio or newspaper archives, thus bringing into play the concepts of practical obscurity. Partial obscurity may enable information which is subject to practical obscurity to be obtained more readily because some of the informational references enabling the location of the practically obscure information can be provided.

The Digital Paradigm and Digital Information Technologies challenge these concepts. I have written elsewhere about the nature of the underlying properties or qualities of the digital medium that sits beneath the content or the “message”. Peter Winn has made the comment “When the same rules that have been worked out for the world of paper records are applied to electronic records, the result does not preserve the balance worked out between the competing policies in the world of paper records, but dramatically alters that balance.”[2]

A property present in digital technologies and very relevant to this discussion is that of searchability. Digital systems allow the retrieval of information with a search utility that can take place “on the fly” and may produce results that are more comprehensive than a mere index. The level of analysis that may be undertaken may be deeper than mere information drawn from the text itself. Writing styles and the use of language or “stock phrases” may be undertaken, thus allowing a more penetrating and efficient analysis of the text than was possible in print.

The most successful search engine is Google which has been available since 1998.  So pervasive and popular is Google’s presence that modern English has introduced the verb “to Google” which means “To search for information about (a person or thing) using the Google search engine” or “To use the Google search engine to find information on the Internet”.[3] The ability to locate information using search engines returns us to the print based properties of fixity and preservation and also enhances the digital property of “the document that does not die”

A further property presented by digital systems is that of accessibilty. If one has the necessary equipment – a computer, modem\router and an internet connection – information is accessible to an extent not possible in the pre-digital environment. In that earlier paradigm, information was located across a number of separate media. Some had the preservative quality of print. Some, such as television or radio, required personal attendance at a set time. In some cases information may be located in a central repository like a library or archive. These are aspects of partial and practical obscurity

The Internet and convergence reverses the pre-digital activity of information seeking to one of information obtaining. The inquirer need not leave his or her home or office and go to another location where the information may be. The information is delivered via the Internet. As a result of this, with the exception of the time spent locating the information via Google, more time can be spent considering, analysing or following up the information. Although this may be viewed as an aspect of information dissemination, the means of access is revolutionarily different.

Associated with this characteristic of informational activity is the way in which the Internet enhances the immediacy of information. Not only is the inquirer no longer required to leave his or her home of place of work but the information can be delivered at a speed that is limited only by the download speed of an internet connection. Thus information which might have involved a trip to a library, a search through index cards and a perusal of a number of books or articles before the information sought was obtained, now, by means of the Internet may take a few keystrokes and mouse clicks and a few seconds for the information to be presented on screen

This enhances our expectations about the access to and availability of information. We expect the information to be available. If Google can’t locate it, it probably doesn’t exist on-line. If the information is available it should be presented to us in seconds. Although material sought from Wikipedia may be information rich, one of the most common complaints about accessability is the time that it takes to download onto a user’s computer. Yet in the predigital age a multi-contributing information resource (an encyclopedia) could only be located at a library and the time in accessing that information could be measured in hours depending upon the location of the library and the efficiency of the transport system used.

Associated with accessibility of information is the fact that it can be preserved by the user. The video file can be downloaded. The image or the text can be copied. Although this has copyright implications, substantial quantities of content are copied and are preserved by users, and frequently may be employed for other purposes such as inclusion in projects or assignments or academic papers.  The “cut and paste” capabilities of digital systems are well known and frequently employed and are one of the significant consequences of information accessibility that the Internet allows.

The “Google Spain” Decision and the “Right to Be Forgotten”

The decision of the European Court of Justice in Google Spain SL, Google Inc. v Agencia Española de Protección de Datos (AEPD), Mario Costeja González, has the potential to significantly change the informational landscape enabled by digital technologies. I do not intend to analyse the entire decision but rather focus on one aspect of it – the discussion about the so-called “right to be forgotten.” The restrictions placed on Google and other search engines as opposed to the provider of the particular content demonstrates a significant inconsistency of approach that is concerning.

The complaint by Mr Gonzales was this. When an internet user entered Mr Costeja González’s name in the Google search engine of  he or she would obtain links to two pages of the La Vanguardia’s newspaper, of 19 January and 9 March 1998 respectively  In those publications was an announcement mentioning Mr Costeja González’s name related to a real-estate auction connected with attachment proceedings for the recovery of social security debts.

Mr González requested, first, that La Vanguardia be required either to remove or alter those pages so that the personal data relating to him no longer appeared or to use certain tools made available by search engines in order to protect the data.

Second, he requested that Google Spain or Google Inc. be required to remove or conceal the personal data relating to him so that they ceased to be included in the search results and no longer appeared in the links to La Vanguardia. Mr González stated in this context that the attachment proceedings concerning him had been fully resolved for a number of years and that reference to them was now entirely irrelevant.

The effect of the decision is that the Court was prepared to allow the particular information – the La Vanguardia report – to remain. The Court specifically did not require that material be removed even although the argument advanced in respect of the claim against Google was essentially the same – the attachment proceedings had been fully resolved for a number of years and that reference to them was now entirely irrelevant. What the Court did was to make it very difficult if not almost impossible for a person to locate the information with ease.

The Court’s exploration of the “right to be forgotten”  was collateral to its main analysis about privacy, yet the development of the “right to be forgotten” section was as an aspect of privacy – a form of gloss on fundamental privacy principles. The issue was framed in this way. Should the various statutory and directive provisions be interpreted as enabling Mr Gonzales to require Google to remove, from the list of results displayed following a search made for his name, links to web pages published lawfully by third parties and containing true information relating to him, on the ground that that information may be prejudicial to him or that he wishes it to be ‘forgotten’ after a certain time? It was argued that the “right to be forgotten” was an element of Mr Gonzales’ privacy rights which overrode the legitimate interests of the operator of the search engine and the general interest in freedom of information.

The Court observed that even initially lawful processing of accurate information may, in the course of time, become incompatible with the privacy directive where that information is no longer necessary in the light of the purposes for which it was originally collected or processed. That is so in particular where the purposes appear to be inadequate, irrelevant or no longer as relevant, or excessive in relation to those purposes and in the light of the time that has elapsed.

What the Court is saying is that notwithstanding that information may be accurate or true, it may no longer be sufficiently relevant and as a result be transformed into information which is incompatible with European privacy principles. The original reasons for the collection of the data may, at a later date, no longer pertain. It follows from this that individual privacy requirements may override any public interest that may have been relevant at the time that the information was collected.

In considering requests to remove links it was important to consider whether a data subject like Mr Gonzales had a right that the information relating to him personally should, at a later point in time, no longer be linked to his name by a list of results displayed following a search based on his name. In this connection, the issue of whether or not the information may be prejudicial to the “data subject” need not be considered. The information may be quite neutral in terms of effect. The criterion appears to be one of relevance at a later date.

Furthermore the privacy rights override, as a rule, not only the economic interest of the operator of the search engine but also the interest of the general public in finding that information upon a search relating to the data subject’s name.

One has to wonder about the use of language in this part of the decision. Certainly, the decision is couched in a very formalised and somewhat convoluted style that one would associate with a bureaucrat rather than a judge articulating reasons for a decision. But what does the Court mean when it says “as a rule”? Does it have the vernacular meaning of “usually” or does it mean what it says – that the rule is that individual privacy rights override economic interests of the search engine operator and of the general public in being able to locate information. If the latter interpretation is correct that is a very wide ranging rule indeed.

However, the Court continued, that would not be the case if it appeared, for particular reasons, such as the role played by the data subject in public life, that the interference with his fundamental rights is justified by the preponderant interest of the general public in having, on account of inclusion in the list of results, access to the information in question.

Thus if a person has a public profile, for example in the field of politics, business or entertainment, there may be a higher public interest in having access to information.

Finally the Court looked at the particular circumstances of Mr Gonzales. The information reflected upon Mr Gonzales private life. Its initial publication was some 16 years ago. Presumably the fact of attachment proceedings and a real estate auction for the recovery of social security debts was no longer relevant within the context of Mr Gonzales’ life at the time of the complaint. Thus the Court held that Mr Gonzales had established a right that that information should no longer be linked to his name by means of such a list.

“Accordingly, since in the case in point there do not appear to be particular reasons substantiating a preponderant interest of the public in having, in the context of such a search, access to that information, a matter which is, however, for the referring court to establish, the Gonzales may, require those links to be removed from the list of results.”

There is an interesting comment in this final passage. The ECJ decision is on matters of principle. It defines tests which the referring Court should apply. Thus the referring Court still has to consider on the facts whether there are particular reasons that may substantiate a preponderant public interest in the information, although the ECJ stated that it did not consider such facts to be present.

Matters Arising

There are a number of issues that arise from this decision. The reference to the “right to be forgotten” is made at an early stage in the discussion but the use of the phrase is not continued. It is developed as an aspect of privacy within the context of the continued use of data acquired for a relevant purpose at one point in time, but the relevance of which may not be so crucial at a later point in time. One of the fundamental themes underlying most privacy laws is that of collection and retention of data for a particular purpose. The ECJ has introduced an element of temporal relevance into that theme.

A second issue restates what I said before. The information about the attachment proceedings and real estate sale which Mr Gonzales faced in 1998 was still “at large” on the Internet. In the interests of a consistent approach, an order should have been made taking that information down. It was that information that was Mr Gonzales’ concern. Google was a data processor that made it easy to access that information. So the reference may not appear in a Google search, but the underlying and now “irrelevant” information still remains.

A third issue relates to access to historical information and to primary data. Historians value primary data. Letters, manuscripts, records, reports from times gone by allow us to reconstruct the social setting within which people carried out their daily lives and against which the great events of the powerful and the policy makers took place. One only has to attempt to a research project covering a period say four hundred years ago to understand the huge problems that may be encountered as a result of gaps in information retained largely if not exclusively in manuscript form, most of which is unindexed. A search engine such as Google aids in the retrieval of relevant information. And it is a fact that social historians relay on the “stories” of individuals to illustrate a point or justify an hypothesis. The removal of references to these stories, or the primary data itself will be a sad loss to historians and social science researchers. What is concerning is that it is the “data subject” that is going to determine which the historical archive will contain – at least from an indexing perspective.

A fourth issue presents something of a conundrum. Imagine that A had information published about him 20 years ago regarding certain business activities that may have been controversial. Assume that 20 years later A has put all that behind him and is a respected member of the community and his activities in the past bear no relevance to his present circumstances. Conceivably, following the approach of the ECJ, he might require Google to remove search results to those events from queries on his name. Now assume a year or so later that A once again gets involved in a controversial business activity. Searches on his name would reveal the current controversy, but not the earlier one. His earlier activities would remain under a shroud – at least as far as Google searches are concerned. Yet it could be validly argued that his earlier activities are very relevant in light of his subsequent actions. How do we get that information restored to the Google search results? Does a news media organisation which has its own information resources and thus may have some “institutional memory” of the earlier event go to Google and request restoration of the earlier results?

The example I have given demonstrates how relevance may be a dynamic beast and may be a rather uncertain basis for something as elevated as a right and certainly as a basis for allowing a removal of results from a search engine as a collateral element of a privacy right.

Another interesting conundrum is presented for Mr Gonzales himself. By instituting proceedings he has highlighted the very problem that he wished to have removed from the search results. To make it worse for Mr Gonzales and his desire for the information of his 1998 activities to remain private, the decision of the ECJ has been the subject of wide ranging international comment on the decision. The ECJ makes reference to his earlier difficulties, and given that the timing of those difficulties is a major consideration in the Court’s assessment of relevance, perhaps those activities have taken on a new and striking relevance in the context of the ECJ’s decision. If Mr Gonzales wanted his name and affairs to remain difficult to find his efforts to do so have had the opposite effect, and perhaps his business problems in 1998 have achieved a new and striking relevance in the context of the ECJ’s decision which would eliminate any privacy interest he might have had but for the case.

Conclusion

But there are other aspects of the decision that are more fundamental for the communication of information and the rights to receive and impart information which are aspects of freedom of expression. What the decision does is that it restores the pre-digital concepts of partial and practical obscurity. The right to be forgotten will only be countered with the ability to be remembered, and no less a person than Sir Edward Coke in 1600 described memory as “slippery”. One’s recollection of a person or an event may modify over a period of time. The particular details of an event congeal into a generalised recollection. Often the absence of detail will result in a misinterpretation of the event.

Perhaps the most gloomy observation about the decision is its potential to emasculate the promise of the Internet and one of its greatest strengths – searchability of information –  based upon privacy premises that were developed in the pre-Internet age, and where privacy concerns involved the spectre of totalitarian state mass data collection on every citizen. In many respects the Internet presents a different scenario involving the gathering and availability of data frequently provided by the “data subject” and the properties and the qualities of digital technologies have remoulded our approaches to information and our expectations of it. The values underpinning pre-digital privacy expectations have undergone something of a shift in the “Information Age” although there are occasional outraged outbursts at incidence of state sponsored mass data gathering exploits. One wonders whether the ECJ is tenaciously hanging on to pre-digital paradigm data principles, taking us back to a pre-digital model or practical and partial obscurity in the hope that it will prevail for the future.  Or perhaps in the new Information Age we need to think again about the nature of privacy in light of the underlying qualities and properties of the Digital Paradigm.

 

[1] The term “practical obscurity” was used in the case of US Department of Justice v Reporters Committee for Freedom of the Press. 489 US 749 (1989)

[2] Peter A. Winn, Online Court Records: Balancing Judicial Accountability and Privacy in an Age of Electronic Information, (2004)79 WASH. L. REV. 307, 315

[3] Oxford English Dictionary