Online Shaming and the Right to Privacy
2. The Narrative of Online Shaming
3. The Structure of Online Shaming
When rumors spread, it is often through a process in which they are accepted by people with low thresholds for acceptance, and eventually through others as well, simply because most people think that so many people cannot be wrong. A tipping point can be reached in which large numbers of people accept a false rumor even though it is quite baseless.(, p. 93)
The transgression should (1) concern the audience; (2) deviate widely from desired behavior; and (3) not be expected to be formally punished. The transgressor should (4) be sensitive to the group doing the shaming. And the shaming should (5) come from a respected source, (6) be directed where possible benefits are highest and (7) be implemented conscientiously.(, p. 173)
At its core, privacy is about the ‘right to be let alone’, the right to remain anonymous, and freedom from being targeted. In a relational context, therefore, privacy is about how to achieve decent participation in the cyber world, and how to safeguard autonomy and dignity in one’s life against the powerful social moral force of monitoring and enduring sanctions exercised through the internet.(, pp. 194–95)
4.1. Privacy and Dignity
Autonomy focuses on just one human faculty, the will, and identifying dignity with autonomy likewise identifies human dignity with willing and choosing. This, I believe, is a truncated view of humanity and human experience. Honoring someone’s human dignity means honoring their being, not merely their willing. Their being transcends the choices they make. It includes the way they experience the world—their perceptions, their passions and sufferings, their reflections, their relationships and commitments, what they care about.(, p. 76)
It is the dignity involved in having the right to know what kind of a deal one has struck, and on what terms. It is the dignity of the one-shot transaction-the dignity that arises from our marketplace right to complete one deal and move on to the next one, the dignity that comes from our right to pay off a debt once and for all and be done with our creditor.(, p. 1090)
The derision, hostility and abuse encouraged by hate propaganda…have a severely negative impact on the individual’s sense of self-worth and acceptance. This impact may cause target group members to take drastic measures in reaction, perhaps avoiding activities which bring them in contact with non-group members or adopting attitudes and postures directed towards blending in with the majority. Such consequences bear heavily in a nation that prides itself on tolerance and the fostering of human dignity through, among other things, respect for the many racial, religious, and cultural groups in our society.42
4.2. Privacy in Public
The message of such a case is that once information is posted publicly online, there can be no privacy claim.48[A] crucial ingredient of the applicable invasion of privacy cause of action is a public disclosure of private facts. A matter that is already public or that has previously become part of the public domain is not private…Here, Cynthia publicized her opinions about Coalinga by posting the Ode on myspace.com, a hugely popular internet site. Cynthia’s affirmative act made her article available to any person with a computer and thus opened it to the public eye. Under these circumstances, no reasonable person would have had an expectation of privacy regarding the published material.
[T]he widespread publication of a photograph of someone which reveals him to be in a situation of humiliation or severe embarrassment, even if taken in a public place, may be an infringement of the privacy of his personal information. Likewise, the publication of a photograph taken by intrusion into a private place (for example, by a long distance lens) may in itself be such an infringement, even if there is nothing embarrassing about the picture itself.(, para. 75)
Those who wish to hold forth to the public by this means often take steps to disguise their authorship but it is in my judgment a significantly further step to argue, if others are able to deduce their identity, that they should be restrained by law from revealing it.(, para. 9)
In these cases the focus was on the right of the user to control the boundary between public and private online, while the European Court of Human Rights (ECtHR) has been more open to protecting a broader right of public privacy.[M]any of those who engage with the internet may hope and imagine that their private communications with their chosen audience will somehow ‘take place’ beyond the observation of others; yet they find it difficult to delimit a place that will permit them the privacy they desire in the boundlessness of cyberspace.(, p. 9)
4.3. Social Privacy
Her fear that he might have been at the Cadillac Lounge and that he could escalate to offline and real-life harassment (though she had no idea what he would do) is based on her view that there is privacy in Twitter and that one account holder can dictate what another account holder tweets. But on the whole of this evidence, relating to both her and Ms. Guthrie, Twitter is not private, by definition and in its essence.On this evidentiary record, asking a person to stop reading one’s feed from a freely chosen open account is not reasonable. Nor is it reasonable to ask someone to stop alluding to one’s tweets. To subscribe to Twitter and keep your account open is to waive your right to privacy in your tweets. Arranging a meeting or social event using tweets other than direct messages is like inviting strangers into your home or onto your phone line while you talk to your friends. Blocking only goes so far, as long as you choose to remain open.I am not satisfied beyond a reasonable doubt that Mr. Elliott’s repeated communications caused Ms. Reilly to fear for her safety. But had I been so satisfied in relation to the Cadillac Lounge incident, I would not be satisfied beyond a reasonable doubt that such fear, based as it was on an expectation that non-direct tweets are private, was reasonable in all of the circumstances [emphasis added].(, p. 83)
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- 1Doxing is when people search for private information about an individual and then reveal it online.
- 2Swatting is when emergency services are called to a person’s house based on a false report.
- 3Jacquet discusses exposure as being “the essence of shaming” (, p. 9).
- 5For further information see the series of scholarly articles from the 1990s, which debated the value of shaming, although the focus was on government-sponsored sanctions, such as such as the use of shaming by the judiciary as an alternative to imprisonment [9,10,11]. This is observed in the case of Shawn Gementera, who was sentenced to, among other things, carry a sign with the words “I stole mail; this is my punishment” outside a postal facility:  discussed by Goldman in (, pp. 424–26). More subtle forms of shaming can also be observed, such as maintenance of criminal records, the use of public trials and perp walks . See detailed overview of this history Klonick (, part C). For more recent discussion, see Nussbaum , Flanders  and Cheung .
- 6See also Klonick (, p. 1033) noting the difficulty in defining shame in general.
- 8Some argue that the value we place on privacy makes shaming effective as a deterrent, because fear of losing that privacy convinces individuals not to behave a particular way: see discussion of Goldman .
- 9Various efforts to shame Facebook for its initial decision to allow these groups remain led the company to reverse its decision and revisit its policies.
- 10Several users transferred to (or threatened to) a different registrar. GoDaddy acquiesced and withdrew support for SOPA/PIPA.
- 11For example, Shurat HaDin—Israel Law Center set up two fake Facebook groups “Stop Palestinians” and “Stop Israelis”. Over the course of two days increasingly severe incitements of hatred and violence were posted on both pages and then the group complained to Facebook. The company initially only shut down the “Stop Palestinians” page until the organization publicized the test.
- 12Klonick asserts that shaming features three things: unclear social meaning, uncalibrated effects, and inaccuracy (, p. 1045).
- 13See discussion, infra, the Structure of Online Shaming.
- 14The tweet has since been deleted, but can be found through any Google search. It is also discussed in Ronson .
- 15So many individuals submitted information that it crashed the Vancouver Police Department’s website.
- 17See Rosen’s discussion of privacy and Monica Lewinsky .
- 18As Nussbaum argues, the fallacy of shame justice is that “it is justice by the mob: the dominant group are asked to take delight in the discomfort of the excluded and stigmatized” (, p. 73).
- 19See discussion of a study by the Cyber Civil Rights Initiative in Citron and Franks . In the case of domestic abuse, typically targeting women, victims service providers have reported that 97% of victims have been abused through misuse of technology, 95% through texting and 55% through posting online .
- 20Note that the term online harassment can be an umbrella for all sorts of unwanted behavior. The term was not defined in the study, at least in the material publicly available. The questions in the survey itself were not available to review .
- 21See more generally the excellent Guardian series “the web we want” .
- 22The situation was first discussed by Nakashima in a Washington Post article in 2007 . The two students sued 39 posters and subpoenaed AutoAdmit and ISPs to identify the posters. Some were identified and the case later settled. Making a case in such situation will be more difficult in light of Elonis v United States .
- 23In separate actions, Lord’s McAlpine settled with the BBC, ITV, Sally Bercow and Alan Davies. Concerning the offer to Twitter users with less than 500 followers, see Branagh .
- 24Note that the Plaintiff had obtained default judgment, and the Court’s reasoning here related to the plaintiff’s application for a permanent injunction, assessment of damages and special costs.
- 26See Citron  discussing the American context. In the United Kingdom, for example, a host of Acts have been re-purposed to target offensive and otherwise hateful comments on social media such as s 127 of the Communications Act  (and here see Chambers v DPP , s. 4A of the Public Order Act , the Malicious Communications Act  and the Protection from Harassment Act, 1977 c 40 . In Canada, one can rely on, to name a few, s. 8 of the Canadian Charter of Rights and Freedoms , provisions in the Criminal Code  on hate speech, harassment, stalking and child pornography, or the recent amendment to the Criminal Code to criminalize the sharing of intimate images (this is the controversial Bill C-13 , or extension of traditional tort claims in trespass, nuisance or defamation to privacy issues. For more on some aspects of the Canadian context see Scassa .
- 29Greenpeace was used as a repeated example of an effective shamer in Jacquet (, chap. 6).
- 31This opens the debate concerning a right to be delisted from search results (more broadly debated as the right to be forgotten) addressed in a data protection context in Google Spain SL, Google Inc.v Agencia Espanola de Proteccion de Datos, Marios Costeja Gonzalez . The risks of such an environment of perfect remembering were earlier examined by Viktor Mayer-Shonberger, Delete: The Virtue of Forgetting in the Digital Age .
- 32Indeed Lisa Austin frames the process as “social” (, pp. 15–16).
- 33David Luban asserts that this was done on purpose for fear of going down the philosophical rabbit-hole and never emerging to reach consensus when drafting the UDHR. He commented, “the invocation of human dignity in human rights documents does no conceptual work in explaining what rights everyone ought to have” (, p. 68).
- 34See related discussion by Austin (, pp. 24–25).
- 35This was also quoted in Fearon (, para. 114).
- 36She also notes we can overcome many of the cultural difference that have been identified by scholars between the European notion of dignity as the root of privacy and the American notion of autonomy as the root of privacy (, pp. 34–35).
- 37See also discussion in Bernal (, chap. 9).
- 38Nissenbaum argues that privacy should be thought of in terms of contextual integrity, meaning that “a privacy violation has occurred when either contextual norms of appropriateness or norms of flow have been breached” (, p. 125).
- 39See Whitman for a discussion of the arguments of Robert Post (, p. 1167).
- 40See analysis of the virtues of moderation see Grimmelmann .
- 41Whitman used this language, stating that “[w]hen the state turns an offender over to the public, it robs him of that transactional dignity” (, p. 1090).
- 42See also discussion by Waldron (, pp. 84–85) about the significance of Dickson CJ’s reasoning in Keegstra.
- 43See discussion by Waldron of the similarities between degrading treatment and hate speech (, p. 109).
- 44Here Cheung was discussing the European Court of Human Right’s interpretation of the meaning of Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 in Sidabras and Dziatuas v Lithuania .
- 45Moreham discusses the risks to privacy related to wider dissemination of a photography (, p. 621–23).
- 48As Paton-Simpson explains, “[t]he message of these cases is, once reasonable people venture outside the safety of their own homes, they must expect that they may be followed, filmed, investigated and spied upon, by any person for any purpose” (, p. 4).
- 49The United Kingdom has also enacted legislation, which addresses revenge pornography. Section 33 of the Criminal Justice and Courts Act  makes it an offence, in certain circumstances, to disclose private sexual photographs or film.
- 50This puts aside, for the moment, an assessment of the flaws in the Bill C-13 , in particular the surveillance provisions. The provision criminalizing sharing of intimate images is sound, although it is of more use to adults than minors.
- 51Nova Scotia’s Justice Department is currently drafting a new cyberbullying act: see .
- 52The Act included, for example, damage to self-esteem and emotional well-being in the definition of cyber-bullying (, s. 3(1)(b)). The judge criticized the definition as a “colossal failure” (, para. 165), and since the law centred around this definition, the Act in its entirety was struck down.
- 53See also discussion by Moreham (, p. 632).
- 54In Judith Vidal-Hall & ors v Google Inc. , the Court concluded that misuse of private information is a distinct tort from breach of confidence.
- 55For discussion of the revelation at the Leveson Inquiry of the hacking see Richardson et al. (, p. 1).
- 56See also discussion in Moreham (, pp. 607–8).
- 57This was also stated in Peck v United Kingdom (, para. 57).
- 58See discussion also in Cheung (, pp. 207–9).
- 59See discussion in Richardson et al.  that case law tends to default to the view of the internet as a public space. Paton-Simpson states the factors that impact the degrees of privacy in public are i.e., “varying degrees of exposure or seclusion in different places and at different times, anonymity and the limitation of attention paid, various social rules, dispersion of information over space and time, and the ephemeral nature of our use of public space” (, p. 8).
- 61In Canada, courts and employment tribunals have looked at the privacy settings of employees in assessing justification for workplace dismissals concerning social media use: see here Mangan .
- 62Westin discusses this idea stating, “[k]knowledge or fear that one is under systematic observation in public places destroys the sense of relaxation and freedom that men seek in open spaces and public arenas” (, p. 31).
- 63See link to the video of the incident . It has been viewed over 1.5 million times.
- 64See Steeves (, p. 199) discussing this idea in the context of Westin’s work.
- 65It specifically concerned s 264 of the Criminal Code .
- 66This was the basis for the development of the tort of misuse of private information articulated in Campbell .
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Laidlaw, E.B. Online Shaming and the Right to Privacy. Laws 2017, 6, 3. https://doi.org/10.3390/laws6010003
Laidlaw EB. Online Shaming and the Right to Privacy. Laws. 2017; 6(1):3. https://doi.org/10.3390/laws6010003Chicago/Turabian Style
Laidlaw, Emily B. 2017. "Online Shaming and the Right to Privacy" Laws 6, no. 1: 3. https://doi.org/10.3390/laws6010003