This article is written by Saswati Soumya Sahu who is pursuing a Diploma in Cyber Law, Fintech Regulations & Technology Contracts from LawSikho.
Table of Contents
Introduction
The term “impact” can be interpreted in two ways. Firstly, it could either refer to an objective violation of privacy, or secondly, it could refer to a perceived threat to privacy. Both these aspects may or may not be linked to each other. However, from a legal perspective, the “impact” to right to privacy can only be weighed against the concept of “informed consent”. This sentence makes sense when we speak about “privacy paradox”. In simple words, this phenomenon can be best described as, “There is a difference between what people say about the privacy of their personal information & what people actually do to protect the privacy of their information.” This is because, users of cloud based internet service providers like Facebook, Twitter, Amazon & Google do have their concerns about privacy. However, they nevertheless continue using it because of the immense popularity of these entities. In reality, such users might simply not understand that, their privacy beliefs & their actions do not match. And therefore, the consent that they provide to these entities for collecting & using their private information is not informed. The description of privacy paradox is also illustrated in the second half of the article, wherein I have tried to draw an analogy between WeChat & Twitter.
As per David Solove (2002), there are six aspects of privacy namely: “(a) right to be left alone; (b) restricted access to one’s person (physical person) or possibility to protect oneself from unauthorised access; (c) right to hide certain things from others; (d) control over personal information; (e) protection of one’s dignity, individuality and persona; and (f) intimacy i.e., right to control & limit access to information that concerns intimate relationships & aspects of life.” Out of three spheres of privacy, i.e., “(a) informational privacy; (b) physical, local or spatial privacy; and (c) decisional privacy”, (Allen 1997, DeCew 1997, Rossler 2005) the focus of this article is on informational privacy. In simple terms, this concerns the data that is collected, recorded & shared about a person. From a liberal standpoint, the notion of self-determination gives meaning and strength to the right to privacy. However, how does this right to privacy shape in the age of social media? It is to be noted that Facebook is a social network & Twitter is considered as a microblogging website.
- Terms & Conditions impacts right to privacy
Ari Ezra Waldman in their paper titled “Privacy, Sharing & Trust: The Facebook Study” argues that users of Facebook may get mixed signals about the effects of their behaviour on their right to privacy since Facebook uses a trust-based design model. In simple terms, it means that there are scenarios when knowing what our friends are doing prompts us to share. Similarly, it also gives us an opportunity to determine when it is safe and when it is not safe to interact with our social environment. There are also instances wherein this trust is leveraged by Facebook to manipulate us into sharing information with the advertisers when we click on such advertisements thereby prompting further sharing of data. However, it is natural to think about the meaning of a word called “trust”? Well, trust for a layperson means that there is a certain amount of “willingness to accept some risk & vulnerability toward others to grease the wheels of social activity”. From a legal perspective, trust finds its essence in the concept of confidentiality. Thus, when there is a breach of confidentiality, right to privacy is threatened in a social media platform. As per Facebook, privacy is two fold: (a) controlling who sees what that the specific user shares on Facebook; and (b) mentioning preferences that would enable Facebook to personalise the experience for that specific user.
A few of the examples wherein a user can protect their privacy are as follows:
- The extent of information that is displayed in ones profile;
- The option to choose one’s own audience in the present and future;
- The option to hide one’s story from specific persons;
- The option to limit or change one’s audience from public or friends of friends to friends only, when it comes to past posts. It is pertinent to note that, if other people are tagged in the post, it could continue to be in public space, unless the person who is tagged changes the setting.
- The option to block people. The consequence of this act is that they would no longer be able to see things that a person posts on their timeline. Such blocked persons shall not be able to tag such person, invite such person to events or groups, start a conversation with such person and add such person as a friend.
- Terms and Conditions of Twitter affect right to privacy
When we speak of the right to privacy of an urban young adult, reference is made to the social, political & cultural aspect of one’s life and the extent to which one exhibits protective behaviour in respect of such aspects of one’s life. Zen Troy Chen & Ming Cheung in their paper titled “Privacy perception and protection on Chinese social media: a case study of WeChat” argues that urban young adults understand privacy as a paradox.
This means that, even though users are concerned about their personal information, they do very little to protect their personal information on WeChat. Once a user becomes a part of a social engagement within the system of WeChat, then their incentive changes. Securing their privacy online becomes secondary to their incentive to continue remaining part of the system. These become the variables on the basis of which one makes a decision, i.e., simple cost-benefit analysis. From the user’s perspective, the power & social capital that comes as a result of the usage of WeChat becomes invaluable & thus difficult to give up. This is because WeChat is used for multiple purposes namely for private conversations, study purposes and work related purposes. A similar analogy can be used to understand how the terms & conditions of Twitter affect the right to privacy of users, strictly from a legal and policy perspective.
- How is the impact on right to privacy assessed?
Even though there is an impact on right to privacy, the liability, responsibility and accountability of the social media platforms is not limitless. The applicable law for the purpose of making this assessment is contractual & extra contractual (tort) civil liability. From an in-house counsel’s perspective, the assessment of the specific case at hand would require the interpretation of responsibility, accountability and liability. As per Kool, responsibility means duty to act with due diligence. When it comes to accountability, it has a procedural dimension to it. From a procedural perspective, accountability is essentially a process which has multiple steps.
- The aim of the process is to stimulate a public assessment subsequently. Public assessment is required to assess the conduct of a person in a specific case. The objective of this public assessment is to evaluate if at all the conduct was required or not. The other objective of the public assessment is to evaluate if this person’s responsibility is justified or not.
- The execution of this public assessment would lead to an evaluation. The result of the evaluation is to establish the following:
- Which actor can be held liable for the aforementioned person’s conduct’s? In such a case, the person can be identified by piercing the corporate veil, which is again considered as a separate assessment.
- Alternatively, is it possible to reduce or limit the liability of the aforementioned person because of varying degrees of the involvement, position & function of the alleged perpetrator?
The end result of the public assessment is to initiate a procedure in court. At this point, liability emerges. As a concept, liability is defined as attaching legal consequences to a specific conduct. The assessment of pecuniary and non-pecuniary loss that is attached with infringement of right to privacy shall be done on a case to case basis.
Conclusion
To conclude, it is important for users to be mindful of the tradeoffs before they click to agree to such terms & conditions. From a consumer law perspective, if users are not being aware of the terms of the agreement, then service providers cannot use this as an excuse to escape liability. It is advisable that such entities use various communication means, like emails to simplify the intent & implication of such terms & conditions, once they change, thereby giving a comparative picture.
Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.
LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:
