New Dimensions In Privacy Law: International And Comparative Perspectives

Cover
Half-title
Title
Copyright
Contents
Contributors
Preface
1 New dimensions in privacy: Communications technologies, media practices and law
2 Privacy and freedom of speech
Introduction
Balancing privacy and freedom of speech
in public disclosure cases
Privacy in support of free speech
Confidentiality of communications
Possession of pornographic material
Prisoners’ correspondence
Anonymity and restriction on caller and connected line identification
Protection against spams and cold calling
Conclusion
3 Revisiting the American action for public disclosure of private facts
What’s wrong with the public disclosure tort?
Dignity and the libel tort
A liberty-based approach to privacy
A changed tort?
Nexus test
Public controversy/duty to notify requirements
Revised action for intentional infliction of emotional distress
Conclusion
4 The internet and private life in Europe: Risks and aspirations
Introduction
Towards a reconsideration of the legal rules and
principles on privacy protection
Definition of ‘personal data’
Categories of data
Legitimacy of the processing
Consent as a basis for the legitimacy of processing
Incompatible processing
The proportionality of the data
Trans-border data flows
Towards the recognition of new rights
The principle of encryption and reversible anonymity
The principle of reciprocal benefits
The principle of encouraging technological approaches compatible with
or improving the situation of data subjects
Users’ right to full control of terminal equipment
Privacy, the internet and consumer rights
Conclusions
5 APEC’s privacy framework sets a new low standard for the Asia-Pacific
Introduction
Making the Framework – APEC’s opaque process
The privacy principles initiative
The nine APEC privacy principles
Bases for Criticism
Scope of the principles (Part II)
Principle I Preventing harm
Principle II Notice
Principle III Collection limitation
Principle IV Uses of personal information
Principle V Choice
Principle VI Integrity of personal information
Principle VII Security safeguards
Principle VIII Access and correction
Principle IX (a) Accountability
Principle IX (b) Due diligence in transfers
What principles are missing? (X and beyond)
Openness
Collection from the individual
Data retention
Third party notice of corrections
Data export limitations
Anonymity
Identifiers
Automated decisions
Sensitive information
Public register principles
Conclusions – a new low standard for IPPs
What use is ‘OECD Lite’?
Implementation aspects of the Framework
The aim of the Framework – a floor not a ceiling?
APEC Part IV’s implementation provisions
Data export obligations and limitations – OECD and EU approaches
APEC’s missing ‘cross-border elements’
Regional and global implications of the Framework
The effect on APEC countries with no information privacy laws
The effect on APEC countries with stronger privacy laws
The global implications
Conclusions – a Janus-faced initiative?
Appendix: Text of APEC’s privacy principles
Part II. Scope
Definitions
Application
Part III. APEC Information Privacy Principles
I. Preventing Harm
II. Notice
III. Collection Limitation
IV. Uses of Personal Information
V. Choice
VI. Integrity of Personal Information
VII. Security Safeguards
VIII. Access and Correction
IX. Accountability
6 Copyright, privacy and digital rights management (DRM)
Introduction
Digital rights management
Copyright and DRM
Privacy and DRM
Continental traditions of privacy protection
Common law traditions of privacy protection
Application of the two privacy traditions to DRM
Collection and processing of identifying information
Electronic surveillance
Self-enforcement mechanisms
Copyright, privacy and DRM
Conclusion
7 Why there will never be an English common law privacy tort
Towards Naomi
The seven stumbling blocks
One: the advance of the equitable remedy for breach of confidence
Principles of breach of confidence
Limits on application of breach of confidence to privacy concerns
Naomi Campbell v. Mirror Group Newspapers
Two: the impact of the Human Rights Act 1998
Three: the dominance of freedom of speech
Four: the impact of the Data Protection Act 1998
Five: media self-regulation
Six: incoherence of the concept of privacy
‘Private facts’
Putting the record straight
Seven: Judicial Preference for Legislation
Conclusion
8 The ‘right’ of privacy in England and Strasbourg compared
Introduction
Campbell and breach of confidence
‘Circumstances importing an obligation of confidence’
What kinds of personal information can be protected under
the doctrine of confidence?
The meaning of ‘private life’ after Von Hannover contrasted
with Campbell
The finding and reasoning in Von Hannover
Von Hannover vs Campbell on the scope of private life:
can the decisions be reconciled?
Privacy and press freedom: the difficult balancing act required
How should the balancing act be carried out: methodology
What types of reportage contribute to ‘a debate of general interest’ and
thus fall within the legitimate role of the press in a democracy?
Conclusion
9 Privacy and constitutions
Powers of search and seizure
The giving of publicity to private life
State criminalisation of private acts
Legal method
10 Celebrity privacy and benefits of simple history
Introduction
Prince Albert v. Strange: a case study in celebrity privacy
Breach of trust and confidence
Violation of property right
Passing off
Invasion of privacy
How little has changed
Bibliography
Index
Index of Laws and Directives
Index of Case References