10 December 2019

Privacy: The moral guidepost for a just society

On Human Rights Day, elevenM Senior Consultant Jordan Wilson-Otto highlights privacy’s fundamental role in human dignity and respect. He argues that advocating for privacy without recognising its position as a human right may prove unfruitful in the long term.

Today is Human Rights Day. It marks the day, in 1948, on which the United Nations General Assembly adopted the Universal Declaration of Human Rights (UDHR), which lies at the heart of the promotion of human rights under international law.

Privacy is one of the human rights articulated under the UDHR, and this year was a big one for privacy in Australia. We’ve seen a major shift in the regulatory landscape, which brings some exciting potential but also great risk should we take our eye off privacy’s origins as a human right.

Yes, privacy is having something of a revival. Over the last few years, we’ve seen a substantial increase in public awareness and renewed interest from lawmakers and regulators across the globe. Privacy is being talked about in a lot of new places, and in a lot of new ways. This is unsurprising. Data has become so central to modern economies that data (and therefore privacy) is now a key driver of productivity, and user data is so essential to the advertiser funded digital ecosystem that it is both a measure of market power, and a focus for consumer protection.

This year, the Australian Competition and Consumer Commission (ACCC) released its Digital Platforms Inquiry Final Report, which highlighted the intersection of privacy, competition and consumer protection. The ACCC recognised that strong privacy laws can support and even drive competition and consumer protection objectives – for example by addressing sources of market inefficiencies such as information asymmetries and bargaining power imbalances and by empowering consumers to make informed choices about how their data is processed. This, in turn, can increase competition and encourage innovation.

These themes were echoed and reinforced in the ACCC’s Customer Loyalty Schemes Final Report, released this month. Together, the reports signal a sustained focus on the ways in which data practices can raise competition and consumer issues. This represents a significant shift in the regulatory landscape and is likely to weigh heavily on how our privacy rights are managed in the coming years.

Principle and utility

Both the ACCC and the Productivity Commission argue for privacy in a way that is quite distinct from its position as a human right. They argue that privacy should be protected, but not because it is essential for our dignity and autonomy as individuals, or because it protects us from discrimination or preserves rights such as freedom of expression and freedom of association. They value privacy for its economic contribution, rather than as a necessary precondition for individual freedom and democracy.

And that’s fine, up to a point – there’s no harm in talking about the utility of human rights protection. For privacy advocates this can even be an effective strategy. Hitching privacy protection to these economic objectives provides a concrete and quantifiable argument for the protection of privacy, which may resonate in ways that the language of rights does not.

But arguments from utility are fragile. They only work when everything is pulling in the same direction. When the trade winds inevitably change and privacy is seen to stand in the way of competition or innovation, its utility falls away. By ignoring privacy’s intrinsic value, utilitarian arguments give us no way to weigh privacy against competing interests.

So it’s important that utility doesn’t become our only strategy. We need to keep view of the intrinsic value of privacy as a fundamental human right. As a human right, privacy carries a unique moral weight. It forms part of a universal baseline of dignity and respect that to which we are all entitled. A baseline that has endured, with near universal consensus for over 70 years. Human rights like privacy provide the moral guideposts for a just, equitable and humane society.

If we become too focused on the practical utility of privacy, we risk losing sight of its deeper significance. If that happens, we risk trading it away for less than it is worth.

Photo credit: Aarón Blanco Tejedor on Unsplash.