Over the last two decades, other common law countries – the United Kingdom, New Zealand, and Canada, in particular – have all begun to develop some form of direct, general privacy protection. In contrast, the development of Australian privacy law has been fitful and piecemeal. The lack of political interest in privacy has meant that legal development has been left to the courts. Few test cases have been brought in Australian courts thus far. A characteristic of privacy protection as it develops throughout the common law world is its interdependence, its conscious borrowings, and adaptations from other legal systems. The most developed privacy protection in the common law is from the United States. Neil Richards’s new book, Intellectual Privacy, is principally concerned with American law, but his work will be of interest to anyone interested in privacy.

George Brandis (photograph by Alex Ellinghausen, Fairfax)

Richards begins his account of US privacy law with the landmark 1890 Harvard Law Review article, ‘The Right to Privacy’, by Samuel Warren and Louis Brandeis. In their article, Warren and Brandeis surveyed the common law and argued that it implicitly protected privacy, which they famously distilled as ‘the right to be let alone’. Warren and Brandeis’s article was later taken up by courts to provide a remedy explicitly based on a right to privacy – an example, more common in the United States than Australia – of academic work shaping the development of the law. What Richards does effectively is to locate Warren and Brandeis’s work in its historical context. Samuel Warren was a Boston Brahmin who married Mabel Bayard, a member of a well-established political dynasty. The Warrens’ wedding received front-page coverage in The New York Times. A significant impetus for the Warren and Brandeis article was a concern about the tabloid press’s intrusive interest in the social lives of upper-class Americans. The work was then informed by a reaction to new media practices and new media technologies, particularly the rise of newspaper photography. The historical context Richards provides then is important in framing the argument he develops in the book. For Richards, concerns about privacy and legal responses to them need to be understood in their historical and technological context, and legal responses need to change as concerns about privacy and their historical and technological context change.

‘Even if privacy is not yet dead, it is said to be under threat on multiple fronts’

Richards argues that the right to privacy identified by Warren and Brandeis and later extended through the equally important work of another law professor, William Prosser, was framed in terms of ‘tort privacy’. What this means is that the plaintiff asserts a right to privacy against a defendant who usually seeks to justify its conduct by raising an argument based on freedom of speech. Framing privacy in this way pits privacy against freedom of speech. Under US law, this immediately raises concerns about the defendant’s constitutional rights under the First Amendment. The framing of privacy as ‘tort privacy’ has been remarkably persistent and widespread. For instance, media outlets in Australia have strongly resisted the introduction of a statutory cause of action for invasion of privacy on free speech grounds.

‘Tort privacy’ is not the only way to conceptualise privacy. In fact, Richards convincingly suggests that this framing of privacy is ultimately an obstacle to confronting more common challenges to privacy in contemporary society. He argues that it is desirable to think about privacy in another way, in which privacy and freedom of speech are complementary rather than conflicting. Drawing upon the rich First Amendment jurisprudence, including the case law and the underlying political philosophy, Richards argues that freedom of speech is dependent upon freedom of thought and that freedom of thought can only be meaningfully guaranteed if people are able to explore new ideas, even dangerous or unorthodox ones, without fear of surveillance or sanction. The ability of individuals to discover new ideas for themselves and to exchange and test these ideas with trusted intimates is characterised by Richards as ‘intellectual privacy’.

‘There is no real political appetite among the major parties to protect privacy in Australia’

‘Intellectual privacy’ is not an abstraction. For Richards, it includes the terms we search online, the books we read through our e-readers, the emails we send to one another. The challenges to intellectual privacy are obvious and should be of concern to us all. They raise the questions: Who should be able to see what we search for online? Who should be able to collect and retain data about our online activity? Who should have access to the emails we send and on what terms, with what protections for us? The next question is: What should the legal response be? Richards then poses the even more important question: How do we protect privacy beyond law?

In Intellectual Privacy, Richards achieves the difficult feat of writing an academically rigorous book which is innovative in its thinking, sophisticated and nuanced in its analysis, and, at the same time, engagingly and accessibly written. Intellectual Privacy is a significant contribution to the academic literature dealing with what privacy means and how it should be protected, by legal and non-legal means. It suggests that privacy is not dead but that it is under threat. By thinking about privacy in new ways, we may be able to save it.