Privacy, Speech, and the Digital Imagination

Abstract

Norms of privacy are grounded in social practices. When social practices are unsettled and rapidly evolving, as they are in digital space, these norms are subject to confusion and uncertainty. A good example is the recent decision of Court of Justice of the European Union (CJEU) in Google Spain SL v. Agencia Española de Protección de Datos (AEPD) (“Google Spain”), which created the “right to be forgotten.” The CJEU derived the right to be forgotten from Directive 95/46/EC (“Directive”), which is arguably the most influential privacy document in the world. The Directive imagines digital data as stored in a space of instrumental reason, as it is when data is compiled and processed by large bureaucratic organizations. The Directive protects data privacy in order to maximize the control of data by data subjects. But the CJEU applied the right to be forgotten to public discourse in the public sphere. The instrumental logic of data privacy is inappropriate to the communicative action of the public sphere, as is the value of “control.” Instead the CJEU should have conceptualized the right to be forgotten to safeguard the dignitary privacy that courts have applied to public discourse for more than a century. Dignitary privacy ensures civility within public debate. It focuses on communicative acts, rather than data. And it requires an assessment of harm to public discourse. All of these concepts are foreign to the analytic framework of data privacy. The CJEU’s confusion between data privacy and dignitary privacy leads to inconsistencies and logical deficiencies in its opinion, which are unlikely to have occurred were the court to have focused on the ordinary print media of the public sphere.