Privacy Versus Consent, And How It Applies To Social Media And The Web

Facebook is engaged in another legal fracas in Germany. But that won’t date this article as I am sure Facebook and other social media services like them will continue to be hauled before the courts until they wake up and realize what the real issue is here. It is not about privacy. It is about consent.

If someone takes something without permission, it’s not inconsiderate, it is stealing. Taking other people’s information is not about whether it is private or not. It is about acting in a non-consensual manner, very much in the way of tin-pot dictators and other assorted bully boys throughout the ages.

One argument goes that because anything you put on the Internet is public or is assumed to be public, even if protected, then it is somehow fair game. We know this isn’t true because if you libel or defame someone on the Web, you face the same legal consequences as you would if you had done it any other medium.

However, there is the assumption considered by many that how one behaves online is to be somehow different then how one behaves in real life, and therefore by some mysterious process, different social rules should apply. Looking at the awful, trollish, neanderthal-like comments on some popular sites such as YouTube, it is hard not to feel deeply concerned that the person who made them may be sitting next to you on the bus.

While cyberworlds with rules unto themselves may exist on the Internet, they still do not have the status of an alternative universe. It is more of a hugely fascinating extension of the world we inhabit, away from the smartphone and computer.

When President Clinton passed a bill making e-mails legal documents, it was an explicit acknowledgement that the Internet is a part of our world without a separate existence of its own. Despite the original opportunity of creating a Brave New World from scratch, we ended up with our own world digitised and presented back to us. It’s a world run by those lucky enough to live in free societies where adults are empowered with the ability to agree and consent (or not) as circumstances and personal choices dictate.

When people walk down the street, they are not fair game for hindrance or abuse. People can’t be obstructed from going about their lawful business without good reason. There are proprieties to be observed. While there is not much to be done if you get caught in the frame of someone else’s happy snap, there are laws against people’s images being taken and used in advertising campaigns without permission. Acme Corporation can’t put up an identifiable picture of you walking down the street minding your business to advertise its wares without first obtaining your consent. It is different for news reporting as it serves a different function. But even then, television crews cannot do whatever they like. Children in educational establishments in certain circumstances need to be anonymised, and so on. Despite how it may look, it is not a free for all.

When you sign up for any of the current social media services, there may be all sorts of rights you are signing away, but the law itself cannot be breached. A bank could not possibly hold you to any agreement that implied that you waived your legal rights under the Data Protection Act. No one can sign away their lives. What would be the point of having laws on the statute books if every organisation or corporation could go around writing their own ones? All there is are terms and conditions that you either agree to or not.

Consent is an adult prerogative. The youth-driven culture of a lot of the social media arena suggests that in their enthusiasm for the thrill of the cool, some basic assumptions about appropriate and civil behaviour may have been skipped over in the excitement. But the hope is that they will get over themselves sufficiently soon in the future to avoid the sort of highly restrictive legislation that the email marketing and direct mail marketing vendors have to go through.

The problem when the lawmakers do get involved is that they will handle the debate on the terms of privacy issue alone. The will do that because privacy invasion is what is being complained about most and it is the squeakiest wheel which gets the most oil. Also, it is easy to draw up laws surrounding privacy. Basically, restriction, restriction, restriction, all the way down.

If we end up on the road to prohibition then the first victim will be civilized discourse not the trolls who care nothing about social mores and will still carry on in their poisonous and pointless way. The focus on privacy rather than consent means that instead of concerns being addressed and approached from the point of view of what constitutes agreeable behaviour, we will face a future full of socially-limiting legislation that could well have been avoided if the service providers had behaved in a civil and polite manner in the first place.

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