By Christina Glon
Emerging Challenges in Privacy Law, Comparative Perspectives (Norman Witzleb, et al., eds, Cambridge University Press 2014). 477p. incl. index. Hardcover $165.00
Emerging Challenges in Privacy Law, Comparative Perspectives is a collection of essays adapted from programs presented at the “Emerging Challenges to Privacy Law: Australasian and EU Perspectives” conference held in February 2012 at Monash University in Melbourne, Australia. To accommodate for the fast-moving development of privacy issues, a few essays have also been specifically commissioned for inclusion in this collection to provide broader coverage of the big issues developing since early 2012. While there is a decidedly heavier focus on European fundamentals, Australian history and/or advances in privacy protections are also discussed in several of the essays.
The collection is organized in six parts and provides a little bit of something for anyone interested in privacy and data protection around the globe. Some topics covered are quite broad (Privacy and the Internet), while others are very narrow in focus (protecting the anonymity of young people in Anti-Social Behaviour Orders). Additionally, the collection offers a nice balance of discussions on theory and the abstract (“[Convention 108] is the only global data protection treaty we are ever likely to see”) as well as detailed discussions about the nuances contained in some privacy arenas (the five categories of “intrusion on seclusion” violations). Finally, several of the essays provide much-needed historical context for the development of privacy frameworks in many different areas of privacy law because it is truly impossible to understand where we are and where we should go with privacy law without first exploring where we have been and how we got to where we are today.
Part I of the collection provides an overview of both the Australian and European Union data protection frameworks from three different perspectives – that of Australian Privacy Commissioner (Timothy Pilgram), of the European Data Protection Supervisor (Peter Hustinx), and finally of an Australian privacy advocate (Nigel Waters, Principal, Pacific Privacy Consulting). All three “agree on the challenges facing data privacy law reform” and the importance of enforcement of data protection laws, however, there is significant disagreement on successful expansion of those laws and enforcements over territorial / jurisdictional boundaries and consistently defining and protecting these rights on a global scale.
Part II provides the much needed fundamentals of the primary documents that have shaped privacy protections in the European Union. Specifically, Chapter 5 examines the architecture of privacy protection in EU through the exploration of current privacy rights and the documents that granted and guarantee those rights (pre-2012 reform proposals). Documents discussed include the well-known European Convention of Human Rights (ECHR) as well as the formal adoption of the more recent Charter of Fundamental Rights (2009). Discussions also touch on “data protection” in conjunction with Convention 108 (1981), Directive 95/46/EC (1995), and continue up to the proposed reforms offered in January 2012.
Chapter 6 focuses on one particular document (Convention 108) and provides food-for-thought about how far privacy protections can really evolve globally. Renowned author and scholar, Professor Graham Greenleaf proffers, “[Convention 108] is the only global data protection treaty we are ever likely to see” because no other organization (save the UN) has the capability nor the desire to draft such a global document and current efforts to update and globalize Convention 108 could eliminate the need for an additional global document.
Part III of this collection gets into the real nitty-gritty of some very specific privacy violations. First, Chapter 7 addresses privacy beyond the unwanted dissemination of private information to that of “physical privacy.” Professor Moreham explores the patchwork of legislative, criminal, and common law measures in England to prevent this “intrusion on seclusion” (including several “slippery slope” examples of each of the five categories of intrusion – unwanted listening and audio recordings; unwanted watching, following, photographing and/or filming; unwanted access to personal documents or files (hardcopy or electronic); unwanted access to home and personal belongings; and harassment). In Chapter 8, Professor Michael Tilbury explores several alternative modes of protection from intrusion based in tort law and weighs the pros and cons of creating new causes of action in tort law and/or implementation of a “privacy rights-based model” to specifically enumerate privacy “wrongs.”
Part IV continues this in-depth analysis by examining surveillance frameworks in the United Kingdom, Australia, and the United States (Chapter 10) and the creation of Anti-Social Behaviour Orders (UK) and Prohibited Behaviour Orders (Australia) (Chapter 11) to prohibit “publication of anything that could identify that a young person has been involved in criminal proceedings” (page 229) in order to uphold the longstanding tradition of protecting the anonymity of young people.
Part V deals extensively with privacy issues and the Internet. Chapter 12 dives deep into development of the Internet, “privacy-invasive and privacy-enhancing features” of the Internet, and the effects (if any) the proposed Data Protection Regulation may have on the future of the Internet. Chapter 13 deals explicitly with the “right to be forgotten” in the EU data protection framework. Chapter 14 compares and contrasts privacy models in the European Union, Australia, the United States, Malaysia, Singapore, and finally, Chapter 15 explores cloud computing in the European Union generally and in Germany, specifically.
Part VI circles back to the media and how the courts in the United Kingdom and Australia should balance the rights of the media and free speech with the rights of the public and witnesses to privacy. It is unfortunate that these two chapters were moved to the end of the collection as they provide the perfect complement to Parts III and IV. Chapter 16 explores the use of anonymity orders to protect (from media disclosure) those involved in judicial proceedings, while Chapter 17 deals explicitly with interlocutory orders in defamation actions.
This collection of essays offers a robust dialog of past, present and future successes and challenges of privacy protections around the globe. It is an excellent collection for gaining a well-rounded understanding of the trailblazing European Union privacy frameworks and offers a mix of hope and cautionary tales to help us move forward in our united and global quest to find balance in privacy rights frameworks.