In ‘Trust Me’ (1862) by pre-Raphaelite artist John Everett Millais a rather stern, forbidding Victorian father holds out his hand gesturing to his reluctant daughter to hand over a letter she is hiding behind her back (rather conspicuously, it must be said). The image, which adorns the cover of Professors Monti and Wacks's new book, is an apt reminder that though the communicative technology might radically change, the human desire to know about others (and indeed conceal aspects of oneself from them) remains relatively constant. A contemporary equivalent might depict a slightly less forbidding parent anxiously scrolling through their offspring's social media page, and it is the challenge of protecting personal information in the digital age with which this book is concerned.
The authors’ starting point is the proposition that privacy is currently undefinable, too broad and has been ‘stretched close to breaking point’ (126). They are critical, for example, of the expansive reading given to Article 8 of the European Convention of Human Rights (ECHR), particularly by the European Court of Human Rights. They advance a more focused definition of privacy, claiming that a narrower understanding will provide clarity, certainty and stronger protection for the core interests at stake. In the digital age the core interest with which privacy is concerned is no longer ‘the right to be let alone’, as per Warren and Brandeis's classic (perhaps even quaint) nineteenth-century formulation; rather, it is simply the security of our personal information (126). This new privacy 2.0 is comprised of two elements: ‘first the right of an individual to choose what personal information should be shared, and, secondly, the right of the individual to maintain control over the personal information shared’ (73).
The authors adopt an interesting strategy, methodically eliminating issues commonly deemed to engage privacy, but which the authors argue do not. It is a thought-provoking approach that takes the reader through a panorama of topical issues in the information age, from the activities of so-called ‘digital robber barons’ to cryptocurrencies, though some matters are unexpectedly whittled from the privacy field in the process. For example, Wacks and Monti suggest that bodily integrity should not be included in the ambit of privacy (42) and raise questions about its application to matters of sexual preference and reproduction (14, 77). They claim that the National DNA Database raises issues of social control rather than privacy per se (45). Even data protection is marginalised; though data protection laws such as the recent EU General Data Protection Regulation may afford indirect protection to privacy, this is incidental to their main purpose of regulating databases and ‘allowing personal data to circulate (relatively) freely’ (22–3). Though the overarching thesis is well made and its aims of clearer, stronger protection convincing, the legal pragmatist and/or the activist may hold on the contrary, that Article 8 ECHR has been a valuable tool to achieve progressive outcomes in ‘hard’ cases such as Dudgeon v UK (1981) and Marper v UK (2008), and that the imperfect opacity of a distended Article 8 is perhaps a tolerable trade-off.
That said, one key strength of this book is its contextual awareness; its pages are enriched with pertinent historic or contemporary examples from across the globe, from surveillance in the Roman Republic to intricate Japanese social understandings of privacy. Of particular interest to this reader, the book's treatment of photographs provides a fascinating discussion of street photography, drawing upon comparative examples from Italy and France (96–9). Elsewhere, Chapter 4 offers illuminating analysis of the impact of digital technologies on our consumer and political choices. The authors discuss activities such as polling and online profiling which pose particular dangers in a political context. For example, they consider the privacy and wider implications of the Obama campaign's use of sophisticated micro-targeting. Yet this chapter is curiously silent on more pernicious recent uses of similar internet-based tactics to ‘manufacture consent’ in Trump's election and the Brexit vote.
The authors conclude by stepping from the academy to the legislature, and append their book with a draft privacy bill which, among other things, sets out two distinct torts: intrusion, which covers certain information-gathering activities, and disclosure, which covers certain disseminations of private information. Such dual torts already exist in jurisdictions such as the US and New Zealand, and the authors’ draft would likely enjoy the approval of leading commentators such as Moreham and Wragg who have argued of the need for an intrusion tort in English law. But irrespective of whether the authors’ efforts find their way onto statute books, Protecting Personal Information is recommended reading for a range of scholars, particularly those working in privacy, media, information rights and cyber-law, all of whom will find intellectual treats to inform their work within. Overall, whether one agrees with Wacks and Monti's thesis in full, in part or not at all, this volume is a both a valuable attempt to provide clarity to this intriguing, sometimes perplexing area, and a reminder of why privacy is such a rich, fascinating and pervasively important subject.