Privacy at what cost?


I was contacted by an Italian journalist today who interviewed me about the Icelandic Modern Media Initiative. His interest in the subject seems to be somewhat fueled by some rather disturbing developments going on in Italy.

The Italian justice minister, Angelino Alfano, has proposed a law which invokes the privacy argument in order to limit freedom of expression in the Italian media, by forbidding them to report on charges brought against individuals until they have been taken up by a court.

La Repubblica has this brief description:

Press freedom in Italy is under threat. A new law (the so-called legge Alfano), to be voted on in the Italian Parliament this week, would significantly limit what the Italian media can report. In particular, it would prohibit the publication or broadcast of any information about the indictment of any individual on any charge until the case comes to court. An Italian newspaper publishing an article on, for example, “Bernard Madoff arrested and charged with record-breaking $50 billion fraud” would risk heavy fines if Bernard Madoff were an Italian citizen. Supporters of the new law claim it would guarantee individual privacy. But at what price?

La Repubblica has been campaigning against this, for example by printing post-it notes beside any article that would infringe this law and explaining why it would not be legitimate to print it if legge Alfano becomes law.

The question of exactly whose privacy is this intending to protect is a valid one. In an editorial by Mauro di Ezio in La Repubblica, he writes:

[Qui] l’obiettivo è quello di tutelare i potenti dal rischio di essere intercettati dal magistrato che cerca prove per un reato e dal pericolo di vedere quelle conversazioni-prova pubblicate dai giornali. E in particolare si punta a tutelare quella particolare categoria di potenti – gli uomini politici – che deve sottoporsi al giudizio della pubblica opinione, e dunque teme l’”accountability”, il dover rendere conto del proprio operato, la trasparenza delle sue azioni. Ovviamente, una larga parte del mondo politico condivide il principio della responsabilità e del rendiconto. Ma il governo, con ogni evidenza, vuole evitarlo.

[Click here for a machine translation]

The issue of Alfano trying to pass yet another law to protect Berlusconi and his cronies is clearly up there. Despite differing opinions of where the thin line between privacy and transparency lies, there has generally been an agreement that public wellbeing is of high importance and that criminal activity is not beyond the scope of public interest. The longstanding dilemma of whether personal privacy can be sacrificed for the public good has no easy answer. Some believe that the public good is more important than privacy, whilst others believe privacy is an outright fundamental freedom. But to me it seems that everybody – including Alfano and Berlusconi – absolutely fail to express in clear terms what exactly they mean by privacy.

In an earlier post (in Icelandic) I took a jab at defining it (“privacy is a limitation on the flow of information for the purpose of protecting a persons physical security, or, given legality, his social standing.”… or something like that), but I was countered by my friend Halli with the argument that “law is not mathematics, concepts cannot be defined clearly.”

I very much disagree with this, in that I think clear definitions can be made, even if exceptions need to be enumerated, or the negative statement form applied, and the definition should be included in the law itself and not just included as a paragraph in the coda, where it has neither legal value (although it’s often considered) nor much chance of being read except by a very small group. The benefit of having a powerful and often misused term such as privacy clearly defined is that it would prevent the abhorrent misapplication of the term, by politicians and others, to service a particular agenda. The same can be said of “free speech”, of course, not to mention “human rights”.

Brandeis and Warren wrote one of the first definitions of privacy, and I consider their version to be the best I’ve seen although it is miles away from the concise definition I had hoped for. They say:

The right to privacy does not prohibit any publication of matter which is of public or general interest. In determining the scope of this rule, aid would be afforded by the analogy, in the law of libel and slander, of cases which deal with the qualified privilege of comment and criticism on matters of public and general interest.

So, according to them, legge Alfano is outside the scope of the protection of privacy, unless it is slanderous, but in that case privacy protection is not the correct law to apply, but rather slander or libel law. Either way, prior restraint is not acceptable.

The really disturbing thing here is that this isn’t the first time Alfano tries to do something like this. In 2008 a controversial law was passed in Italy (lodo Alfano) that essentially emulated a law from 2004 (lodo Schifani) which was found to be unconstitutional. According to this law the four top-ranking state officials – the president, the two speakers of the houses of parliament, and the prime minister – would be granted immunity from prosecution. Unsurprisingly this law was also ruled unconstitutional in 2009.

This may seem unrelated… but it isn’t. It’s corruption. It’s deep and complex, and unfortunately, in this case it’s all happening in a language I don’t speak (although I can dredge through some few paragraphs with a bit of help from Google Translate). If you dig deeper into the matter, like reading Mauro di Ezio’s editorial in full (I did, and now my brain hurts), you’ll see that there is a very strong connection between this law proposal and the issue of wiretapping. I’m not going to get into it now, it’s worth a few dozen posts in and of itself. But in short, let’s hope that legge Alfano doesn’t pass.