Overlooked - Liberty

Overlooked: Surveillance and personal privacy in modern Britain 7
talk about surveillance society in the future tense’. In January 2007, perhaps in response to
comments about ever increasing surveillance and data sharing, the former Prime Minister Tony Blair
and others in government spoke of the need for greater information sharing between government
departments 5 . Inherent was the implication that there were unhelpful barriers preventing information
sharing taking place. As Schedules 2 and 3 to the Data Protection Act clearly state, the processing
of data between government departments and between public bodies generally is permissible 6 .
However it must also be processed for specified purposes, not be excessive and not kept longer
than necessary. Then Prime Minister Tony Blair’s intention might have been to argue for an extension
of what was currently permissible. Unfortunately the examples he gave (information about those
recently deceased and medical information following an accident) were situations where sharing
would not be prevented. This does not help reasoned debate, as the reaction of anyone unaware
of what is permissible would be that information sharing should of course be extended if it helps the
recently bereaved or helps deal with a medical emergency.
Different Aspects of Privacy
The simplest modern legal definition of privacy came from the 19th century American lawyer Judge
Cooley, who defined it as “the right to be let alone” 7 . This is an essentially negative formulation of a
right. Another simple definition was provided by Geoffrey Robertson in 1993 when he suggested
that the right to privacy is, at its most basic and generic, “the right to be able to live some part of
life behind a door marked ‘do not disturb’” 8 .
Definitions prove over simplistic to such an extent as to be unwieldy. Privacy by its nature means
different things to different people and it is therefore difficult to rely on a single interpretation. Rather
than seek to pin the tail on the donkey with a single definition, it is perhaps more helpful to provide
an overview of the principal aspects of privacy.
Informational Privacy
Informational privacy concerns the collection, use, tracking, retention and disclosure of personal
information. It increasingly incorporates elements of decisional privacy as the use of data both
expands and limits individual autonomy.
Informational privacy includes data protection, but it is broader than this, and also includes more
‘positive’ informational rights, such as freedom of information.
Physical Privacy
Physical privacy is almost never referred to as such: it is concerned with the protection from outside
interference of the body, the physical self. Physical privacy is widely protected through both the
criminal and civil law (rape, assault, battery, and so on). However, many issues which fall within its
remit are not yet adequately legally covered: excessive strip-searching, genetic testing, biometric
testing, drug testing and cavity searches.
5
See http://news.bbc.co.uk/1/hi/uk_politics/6262455.stm
6
At Schedule 2 (5) and Schedule 3 (7) Data Protection Act 1998.
7
Cooley on Torts, 2nd ed (1888), p 29.
8
Geoffrey Robertson QC, Freedom, the Individual and the Law, 7th ed., Penguin (London, 1993) p. 104.