The catalyst: Privacy of the group as well as privacy of the individual inside the group

Like most other students writing up a doctoral dissertation, when I was researching mine between 1983 and 1986 I was compelled to temporarily abandon several lines of inquiry in the eternal search of narrowing the focus sufficiently. One of the areas of investigation which I had to postpone to a later date was the subject of communal privacy and privacy of the community as complementary to and often also intrinsic to individual privacy. I was particularly struck by the paradox of privacy in a small and intimate community, whether it was individual privacy or privacy of a group of people. This area of investigation eventually became a labour of love which I would turn my mind to in an increasingly structured manner as the years went by and from which I hope to share a few lessons too.

Credit must be given to Barrington Moore for inspiring this line of thought for it was his first chapter of the book Privacy published in 1984 that set me down a line of inquiry that I have pursued ever since: what can we learn from anthropological approaches investigating privacy-related behaviour in indigenous communities? Why and how did we come to cherish privacy? In summary I have since designed and carried out fieldwork [1] which has been deployed in various stages within, for, or by a number of indigenous communities, both pastoral communities as well as hunter-gatherer tribes in Brazil, Kenya, Borneo, and peninsular Malaysia. I am hoping to eventually spread out to Australia, New Zealand and many more parts of Asia, Africa and South America in order to further establish an evidence-base about privacy-related behaviour in many types of cultures. Some day, I also hope to publish the results of this research in a volume which is provisionally entitled The right that never [quite] was: Privacy and Personality across cultures [2] but until that happens I still feel the need to share some of the preliminary results since they may be useful to colleagues and friends, especially those engaged in or with the work of the mandate of the UN Special Rapporteur for Privacy.

As I delved deeper into anthropological studies dealing with the oldest indigenous communities around the world it became clear that the Aboriginals of Australia, the Maori of New Zealand and the Yamomami of the Amazon all showed traces – to varying extents – of a phenomenon I had observed in small island states, small communities in southern Italy and Sicily etc. etc. i.e. that apart from individual privacy there were also strong elements of what could best be termed the privacy of the community. In other words, a number of communities around the world value the privacy of the community from outsiders sometimes at least as much as they value the privacy of the individual.

In my recent book The Individual and Privacy I examined the notion of privacy from the perspective of three dimensions of Time, Place and Space. In doing so I was also aiming to provide a suitable additional framework within which privacy-related behaviour could be analysed. A careful read of the papers in those various sections would suggest that all the evidence we currently have seems to indicate that there are aspects of privacy which are core across cultures and others which appear to be more at the periphery.  It is yet to be determined as to whether the Time dimension acts together with economic prosperity in a way that makes people care more about privacy or possibly less. What is certain is that the book’s chapters dealing with, for example, parts of Asia, including China and Japan clearly indicate cross-cultural differences in approaches to privacy. These differences do not mean that the fundamental human right to privacy does not exist or that it is not universal: I suggest instead that the differences may shift with Time, Place and Space while the core of the right subsists and the way it is expressed develops continuously. I further suggest that modern IT technology has added further sub-dimensions to Place and Space especially since we now have cyberspace and other virtual spaces to contend with coupled with factors like convenience of accessibility and ease of use. The evidence base for some of these factors especially in areas like convenience has also been partially investigated in some of my collaborative research projects such as RESPECT, SMART and CONSENT.

From privacy of the group to Privacy and personality

As I took my quest for evidence of individual and group privacy international, well over two decades ago, I realised that I needed a new language especially if I was dealing with cultures which do not even have a word for privacy. For I quickly learned – and this much from the forthcoming book I am happy to reveal – that even if a culture does not have a word for privacy it is still perfectly capable of developing information ethics around privacy-related behaviour and spaces. So how do you explore notions of privacy with somebody who does not have a word for privacy? How do you find out whether that person values privacy or not? Apart from teaming up with cognitive psychologists and anthropologists to devise and validate an instrument (detailed interview guidelines) which we could use anywhere in the word from the jungles of Borneo to the forests of Kenya and the villages of Sicily and Calabria, I then realised that we needed to openly ask the question “Why privacy?”.  Once our instrument helped us identify various forms of privacy-related behaviour and values, I started probing further trying to get people from all cultures to answer the question “Why is privacy important to you?”. This is the question which took me back to another subject I had explored back in 1983-1986 i.e. the over-arching right to free, unhindered development of personality, which in a short 2008 article I dubbed a ius personalitatis which should be enshrined within a Lex Personalitatis. (LP) This quest for an LP does not in any way question or undermine the right to privacy. Indeed it presupposes that privacy is a fundamental right capable of universal application, that it is a stand-alone right capable of being enforced independently in much the same way as other kin fundamental rights like freedom of expression.


What it does question however is whether Privacy is, in terms of functionality, primarily an end in itself or whether it is a means to an end. This is not to deny that for some people on some occasions they may seek privacy for the sheer gratification that privacy offers directly but I submit that like freedom of expression that is not the main function of privacy. Instead I have in my March 2016 report to the UN HCR explicitly stated that I intended to carry out a study which

“responds to the crying need identified of achieving a better understanding of what privacy is or should be across cultures in 2016 in a way which makes the understanding of the right more relevant to a digital age where the internet operates without borders. In asking the question “Why privacy?” and positing privacy as an enabling right as opposed to being an end in itself, the SRP is pursuing an analysis of privacy as an essential right which enables the achievement of an over-arching fundamental right to the free, unhindered development of one’s personality. This analysis is being carried out in close co-operation with several NGOs and is expected to be the focus of a major international conference which will be organised in 2016. This analysis of privacy is being carried out in a wider context and one where its intersection with other fundamental rights is also being examined. Thus the relationship of privacy with freedom of expression and freedom to access publicly-held information is expected to be examined inter alia also through joint action with other UN Special Rapporteurs and discussions are already underway with the Special Rapporteur for Freedom of Expression in order to explore opportunities for joint action about this matter during 2016-2017”

As I travelled around the globe in 2015-2016, visiting countries like Brazil, New Zealand, the USA and Australia in addition to a host of European countries, I deliberately tried out the arguments about personality and privacy on multiple stakeholders. I continue to be pleasantly surprised by the favourable reception that this approach has received. I have noted that by asking the question “Why privacy” and then linking the answer to the right to unhindered development of one’s personality, most people, from different cultures tend to lose much of their cultural baggage and instead focus on the free development of personality as one of the rationale’s for privacy and its protection. Most people I’ve met, especially parents, seem to take well to the thought that the child’s right to develop freely within the parameters set by the moral codes of the parents is one which is normally facilitated by privacy.  This approach works with people who have no word for privacy as well as others who may traditionally have laid more emphasis on group privacy rather than individual privacy. Some Privacy commissioners on the other side of the world have told me that they are looking forward to using this approach to create further understanding about privacy even in the APAC countries.

The main reason for this is the one linked to on-going and future discussions on informational privacy in cyberspace. Given that this is a new space which allows unparalleled ease of interaction and publication as well as massive consequences if privacy is infringed, it is felt that we need a new understanding as to how privacy needs to be better protected in this space. By understanding how our behaviour in cyberspace may impact others or be impacted by the behaviour of others active in cyberspace in a way which affects the development of our personality or that of others, we identify more easily those areas where we feel that our privacy is at risk and try to devise safeguards and remedies as a direct by-product of this new understanding. In practice this translates into our accepting or not accepting limits on both our privacy as well as our freedom of expression.

This approach may also be useful in those areas of intercultural approaches to privacy which may be characterised by a strong religious influence in some countries. In some of my writings in the past [3] I have demonstrated how privacy principles are largely common across the world’s major religions including Christianity and Islam. I have also noted that recent attempts to differentiate between the Universal Declaration on Human Rights and other Human Rights instruments may not have been overly helpful but have not yet led to a full-blown schism as to the value of Article 12 UDHR. Furthermore, Muslim parents are often as keen as Christian parents to see their children grow up in as free a manner as their moral codes permit and would tend to see any artificial constraint on the free development of personality as something unwelcome. This together with a strong sense of privacy articulated in the Quran and both the Islamic and the Arab Human Rights instruments of 1990 and 1994 respectively.

The issue of privacy and personality is therefore far from being a purely academic quest. It is a means to an end in that it complements the effect of legal instruments outlining safeguards and creates fertile ground for discussion which can help foster international agreement as to why, for example, privacy in cyberspace is so important. By examining the threats to the free, unhindered development of personality posed by certain applications of technology such as cyberspace, then the privacy safeguards which may later be transposed into a wide variety of legal instruments come to the fore in a useful context. In this sense talking about privacy and personality becomes an integral and important part of strategies for success in the increase of protection of privacy world-wide.

This is also where an understanding of privacy in the context of personality rights may also take us back full circle to art 28 my SRP report.

“The impact of new technologies also means that we may have to re-visit the distinctions between individual and collective privacy as well as expectations of privacy in both public and private spaces, always in the context of dignity and the free, unhindered development of one’s personality.”

[1] A word of caution on the lines of “Do not try this out at home”. Fieldwork is ultra-rewarding but is not for the faint-hearted and carries with it multiple occupational hazards: over the years my commitment to privacy and personality across cultures has had me trekking in the forests of Africa and in the jungles of Borneo, going up rocky rapids in a canoe, landing on rainforest airstrips so short that tiny planes often skid right off, driving  4x4s for hours at crazy angles through all kinds of terrain, having the same all-wheel drive vehicles become bogged down axle-deep in mud when caught out in topical thunderstorms, blowing tyres in desert roads, warding off dangerous insects and reptiles, swallowing countless anti-malaria pills for weeks on end, taking more anti-this and anti-that jabs than I care to remember, occasionally being sabotaged or shot at, learning how to shoot straight so that in extreme cases we could get out of trouble, when a shower every four days or using a normal toilet was the epitome of luxury etc. etc. .. the list goes on. Even urban fieldwork on privacy has its own health and safety issues. Compared to these hazards the occasionally boring privacy conference is truly a walk in the park – and happily most privacy conferences are not boring at all. Designing and executing privacy fieldwork requires meticulous planning, domain expertise, an experienced multidisciplinary team, careful application of the highest ethical standards, long-term partnership with local and indigenous communities, adequate funding and resourcing, physical fitness and sometimes a range of military-grade survival equipment and the training and ability to use it. Moreover, as team leader there is then the added weight of taking decisions affecting personal health and safety of team members, a responsibility which weighs heavily especially when research destinations are known to be high-risk. At this stage two of my teams additionally have full-time members with several years of military experience and training. Moral of the story? Do not take privacy fieldwork lightly if you wish to survive and share the results with others. I intend to return to my fieldwork every year but volunteers are subject to tough auditions and tests before they are accepted for further training.

[2] Why this title? Because long before the right to privacy was ever formally recognised, people all over the world behaved as if they have and expect such a right, albeit occasionally in different ways, in different places at different moments in time.