Criminalising privacy in the digital age: The reasonable expectation of not being digitally monitored
| Author | Xiaoxiao Wang,Dennis J. Baker |
| Published date | 01 June 2022 |
| Date | 01 June 2022 |
| DOI | http://doi.org/10.1177/00220183211033150 |
| Subject Matter | Articles |
Article
Criminalising privacy in the
digital age: The reasonable
expectation of not being
digitally monitored
Xiaoxiao Wang
South-Central University for Nationalities, China
Dennis J. Baker
De Montfort Law School, UK
Abstract
In this essay, we try to present a case for having a general privacy offence. Privacy is about much
more than voyeurism involving sexual exploitation. The recent offence of upskirting is too
narrow to protect the broader set of privacy interests that exist in plural societies. Current
technology means it is all too easy for the masses not only to spy, but to keep digital records of
information that belongs to others including their images, voices and correspondence. We shall
try to demonstrate that private acts and information that are revealed in an ephemeral sense in
a public place should not be put in permanent form and a fortiori should not be published online
or in hardcopy. It will be argued that publishing such information without consent or lawful
justification is sufficiently harmful to justify making it a crime. It shall be submitted that while
human rights law, data protection law and tort law recognise the wrongful harm in privacy
violations, the protection offered by these bodies of laws is limited, because they rely on
expensive civil litigation that is out of the reach of most. Billionaires can pay for nondisclosure
agreements to keep misconduct (such as bullying and sexual harassment) out of the news, but
many people with genuine privacy claims cannot afford to seek compensation.
Keywords
Criminalisation, privacy, digital harassment, public/private law distinction
Introduction
Given the spate of recent offences criminalising violations of sexual privacy, one wonders why sexual
privacy is still the focus privacy harassment. A broader analysis of criminal law protection against
Corresponding author:
Dennis J. Baker, De Montfort Law School, Leicester, UK.
E-mail: dennis.baker@dmu.ac.uk
The Journal of Criminal Law
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DOI: 10.1177/00220183211033150
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2022, Vol. 86(3) 145–169
breaches of privacy would be timely in the sense of aligning with the policy presented in Government’s
White Paper, ‘Online Harms’ (April, 2019). Purposeful embarrassment is a core form of harmful conduct
identified in research released by the Department for Digital, Culture, Media & Sport .
1
The report gives
examples such as: ‘Posting real personal information about individuals to embarrass them, such as
sending images of them in stages of undress, posting who they are attracted to, or information about
homosexual preferences which are not known to the general public’.
A broader privacy offence (necessarily carefully constructed and limited) could catch harmful content
that may be difficult to categorise as sexual, abusive or offensive. In a recent incident, a solicitor had her/
his computer screen and the information on it filmed by a rival solicitor from a neighbouring building.
The rival then used the recording to the solicitor’s detriment. There is no criminal liability for such
conduct under our existing law. The law of theft does not necessaril y cover obtaining confidential
information, and information obtained from filming a computer screen does not amount to computer
misuse. In some jurisdictions, however, obtaining and using (without consent or lawful justification)
private information can constitute a criminal offence under privacy offences, for example, in California,
France, Portugal, Germany and Switzerland.
The White Paper (Online Harms) also contains the government policy concerning a regulatory
framework for ensuring that platform providers take reasonable steps to remove harmful content from
platforms. Harmful content such as videos glorifying and inciting terrorism and child abuse images can
be identified, filtered and removed, but the best Artificial Intelligence filters would not necessarily be
able to identify content that is innocuous apart from the fact that it is private to a particular person. The
person who has suffered a privacy loss is best placed to know about it and would be in the best position to
take steps to have private content deleted from the public sphere. However, by that stage the material
could have been downloaded and distributed to many. Similarly, a person could live-stream a confi-
dential meeting without the consent of those present: the harm would be put in motion before a platform
provider could do much to assist. It is submitted, therefore, that it is worth investigating whether criminal
liability for processing and publishing private information without consent or lawful justification would
provide necessary protection and substantially deter this sort of wrongdoing. Data protection laws are
suitable for regulating corporate data controllers, but are not apt to deter individuals from collecting and
misusing private information.
While the law has recently improved its criminal protection of infringement of sexual privacy and the
exploitation of another’s sexual images (e.g. recent offences concerning the disclosure of private sexual
images and digital recordings and up-skirting) a broader set of privacy issues have emerged with new
technology. It is all too easy to put others under surveillance and keep permanent copies of their private
information including biometrics such as their voices. Reverse image search technology already allows
people to search people from images. The law has to catch up not only with the technology, but also with
the social fact that there is a recorder within five feet of every person almost all the time.
We shall try to make a case for criminalising privacy invasions. Our main focus is on privacy in
public spaces, because if we can make a case for criminalising privacy violations that take place in public
places, then a fortiori the case is made for criminalising privacy violations in private spaces. Private
spaces include work offices, hotel rooms, computers, private email accounts, iCloud accounts and so on.
We can see no case for narrow privacy offences such as those criminalising the loss of privacy involved
in revenge pornography
2
or the loss of privacy resulting from upskirting,
3
because it would be better to
cover these wrongs in a general privacy offence.
1. See research report titled: Adult Online Hate, Harassment and Abuse: A Rapid Evidence Assessment (2019).
2. S 33 of the Criminal Justice and Courts Act 2015, which has led to prison term for an offender who sent a topless photo of his
girlfriend to her mother. See R v Bostan [2018] 2 Cr App R (S) 15.
3. See s 67A of the Sexual Offences Act 2003. There was a gap in the law that was plugged haphazardly in the past through judges
stretching the vague common law offence of ‘outraging public decency’. See R v Hamilton [2008] QB 224.
The Journal of Criminal Law 86(3)
146
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