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Ronald J. Krotoszynski Jr., Reconciling Privacy and Speech in the Era of Big Data A Comparative Legal Analysis, 56 Wm. & Mary L. Rev. 1279 (2015).

Freedom of speech can be regarded as the product of the modernization process that occurred in Europe during the seventeenth and eighteenth centuries. As people moved out of the narrow confines of their rural villages, and the population of the towns expanded beyond the narrow limits of craft guilds and commercial families, a public culture developed within and among the rapidly expanding urban centers of the Early Modern era. In these settings, the gradual relaxation of the legal sanctions against various types of speech was accompanied by a parallel attenuation of the social sanctions that constrained such speech. The shaming and shunning that could occur in a village or small town ceased to function in the burgeoning urban context. People expressing dissident views could find like-minded individuals with whom to socialize and achieve a degree of anonymity in the more mobile and pluralistic world of broad boulevards, large financial or industrial organizations and bureaucratized public institutions.

As Ronald Krotoszynski points out in a recent article that I like lots, the advent of modern communication technology places both sources of our hard-won freedom of expression at risk. It reintroduces shaming and shunning penalties by enabling those who are offended by a particular statement to generate condemnations that will be permanently attached to an individual’s Net presence and thus publicized throughout society. In addition, the government’s access to big data enables it to impose indirect threats to free speech in the form of wide ranging, coordinated surveillance of the individual’s activities. Even if the legal system continues to prohibit direct criminalization of speech, the possibility of prosecution for other crimes, or the government’s unauthorized but untraceable disclosure of sensitive information, may well produce a chilling effect that rivals the force of criminal penalties.

Professor Krotoszynski explores the possibility of legal responses to this potential loss of freedom by contrasting European and American law on the subject. Although the idea that Europe provides more extensive protection for personal privacy than the U.S. has become something of a comparative law bromide, he demonstrates that it possesses an essential validity. His summary of European Union doctrine provides an excellent introduction for the general reader. In contrast to American law, the European Convention on Human Rights not only includes an explicit right to free speech (Article 10), but also an explicit protection of personal privacy (Article 8). In addition, the European Court of Human Rights that interprets this Convention follows general Continental practice in holding that the violation of a right is not sufficient, by itself, to justify judicial relief. Rather, once the violation has been found, the extent of the burden it imposes must be balanced against the pragmatic justifications for the state policy that has trenched upon the right in question. Thus, the European Court must balance two conflicting rights of equal legal dignity, and must carry out that calculation at an explicitly identified stage of the judicial decision making process.

This would appear to form a dramatic contrast with American law. The U.S Constitution definitively establishes freedom of speech and does not state any countervailing right (the Supreme Court’s right of privacy being an interpretation, and applying primarily to family choice). Once a court has found a violation of that right, the law or policy that violates that right is supposed to be invalidated, with no further consideration of the government’s justification. But Professor Krotoszynski argues that, in actuality, the contrast is not quite so stark. The European Court finds, in a variety of circumstances, that the Article 10 right of free speech must prevail, particularly when the person attempting to assert privacy rights is a public figure. Conversely, American courts, with or without positive law to invoke, have favored privacy interests over speech in cases where the intrusion on the individual was deemed excessive, such as targeted picketing of a person’s home, using the Freedom of Information Act to obtain personal data, recording a person’s cell phone conversations, or publishing information obtained through civil discovery.

Given this partial convergence of European and American law, Professor Krotoszynski suggests, the United States is in a position to learn from current European efforts to balance free speech and personal privacy law. The reason why this balance must be struck is that, in our modern world, privacy itself is as much a component of free speech as a constraint upon it. “In an age of metadata, privacy constitutes a kind of precondition to speech, just as assembly constitutes a necessary antecedent to petitioning” (p. 1335). The analogy to petitioning, which happens to be the subject of a book by Professor Krotoszynski, is telling. An assembly is a place where people gather to formulate a petition. Similarly, an individual must gather his or her own thoughts before speaking, and certainly before speaking effectively, about an issue. Modern urban life, free from the constants imposed by the intrusive eyes and debilitating gossip of one’s fellow villagers or townspeople, provides a clear space for such preparatory thought.

But the Internet’s ability to intrude into a person’s life, to disseminate visual images of people’s careless actions and to pillory their passing comments, invades and colonizes that formerly clear space. It dissolves the anonymity that the modern city conferred on its residents, and restores, through fictive screen names, the anonymity by which disparaging remarks could be introduced into the stream of village gossip.  Government’s collection of big data poses an equivalent threat, not so much from what appears in public as from what is known in the hidden recesses of administrative agencies. In both cases, the effect is to invade that same abode of thought that serves as a prerequisite for speech. Modernity’s gift to freedom has not only been to place constraints on public power, but also to dispel the suffocating force of conventional opinion. It provides people with an alembic where they can formulate their thoughts and plan their actions free of either government surveillance or social disapproval—in other words, it provide them with privacy. Professor Krotoszynski alerts us to the essential role that privacy plays in freedom of expression—not as a countervailing force but as an essential component. At the same time, he traces the way that those two principles can come into conflict in many real situations, how European courts have struggled to resolve those conflicts, and how our own courts and legislators might learn from that experience, and we move, or are dragged, forward into the information age.

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Cite as: Edward Rubin, Privacy and Freedom of Speech in the Internet Era, JOTWELL (December 8, 2015) (reviewing Ronald J. Krotoszynski Jr., Reconciling Privacy and Speech in the Era of Big Data A Comparative Legal Analysis, 56 Wm. & Mary L. Rev. 1279 (2015)),