By: Flávia Lubieska N. Kischelewski , Lawyer and Master's student in Law at the Brazilian Institute of Teaching, Development and Research (IDP)
The vast capacity for collecting, storing, sharing, and transferring information, as well as personal data, through means and at speeds that are difficult to measure, directly reflects how we behave and affects legal rights that are dear to us.
According to Castells, computers, communication systems, and genetic programming are all amplifiers and extensions of the human mind. What we think and how we think is expressed in goods, services, material and intellectual production (2020, p. 89). They are, therefore, manifestations of our personality, legally protected.
The enactment of Law No. 13.709/2018 (General Data Protection Law or LGPD ) has made issues such as personal data protection and the right to privacy highly relevant due to the diverse impacts they can have on individuals, private companies, and public sector organizations.
One aspect that marks, as a common point and to a certain extent, the construction and importance of these two rights, privacy and protection of personal data, would be technological advancements and their impacts on societies.
This article aims to briefly examine the background and common issues that contributed to the development and construction of the doctrine on privacy rights and the protection of personal data, based on technological and social developments.
New technological advances and the construction of the right to the protection of personal data.
There is no denying the centrality of the technological revolution and its impacts on people and their personal, commercial, and professional relationships, and, as a rule, any interactions one can imagine, as well as on the ways in which individuals express their personality.
Technological development has facilitated the invasion and exposure, through media coverage, of the routines of famous people in newspapers and magazines. In 1890, the discussion about the inviolability of personality gained momentum following the article "The Right to Privacy," written by Samuel Warren and Louis Brandeis.
Although the topic was not unprecedented, this article is considered a landmark in the development of the theory of the right to privacy, especially in the United States. The core concern was the potential increase in the invasion of people's private spheres, fostered by the technology available at the end of the 19th century.
During that period, there was a defense of the existence of a principle that could be invoked to protect the privacy of the individual, particularly their private life, from invasion by press organizations, photographers, or those possessing any other modern device capable of recording or reproducing scenes or sounds.
Similar to what is being discussed more intensely today, there was concern about the continued preservation of records of emotions, thoughts, and sensations that could even be deduced from facial expressions. This led to the so-called " right to be let alone."
The unauthorized reproduction of photographs and private writings was also questioned. The right to honor or the right to property were not sufficient to justify the need for legal protection, since it was personality rights that were at stake.
Indeed, concern about the ways in which individuals express themselves publicly and how this can be preserved through increasingly sophisticated electronic devices has gained traction in subsequent decades. At the time, technology was still very rudimentary. Nevertheless, current debates are no less similar.
Warren and Brandeis proposed relatively simple solutions to the issues of the time. The right to privacy would serve to provide legal protection for an individual's decisions regarding the communication of information about their private life.
It would be up to the individual to decide which of their affairs could be considered private and which could fall into the public sphere. There would be a presumption of self-determination, and the law should protect this, unless there were adequate reasons not to do so.
What was questioned in terms of invasion of privacy more than a hundred years ago, while not changing much in terms of primary questions, does change when social and technological changes are analyzed.
Over the years, a veritable industry based on rumors and gossip has established itself, culminating in the proliferation of reality shows where people agree to relinquish their privacy. While some intend to preserve their private sphere as much as possible, others want to give up privacy altogether.
Given these circumstances, the right to privacy has obviously not ceased to exist, but it has taken on new forms. A certain flexibility in its interpretation and application has resulted, in part, from the need to take into account, for example, the so-called public interest.
To what extent is the right to privacy similar for all people? Does a publicly known person, such as a politician or a famous artist, deserve the same privacy as an ordinary person? What are the limits and weight of public and private space in this assessment? Should the press act restrictively?
Regardless, although several issues remain to be examined, it is undeniable that the change in perception of the right to privacy is certainly impacted by the technological revolution and the social and cultural context.
In this context, it is observed that new inventions always occur in parallel with social changes. Previously, overexposure was largely dependent on journalists and photographers in relation to people of interest to the public. More recently, the participation of a third party is no longer mandatory.
All it takes is a single post on social media, whether from a celebrity or not. Certain people seek to generate this kind of promotion or even harassment, whether for personal satisfaction or to obtain other advantages, including profit.
Self-determination, which allows individuals to decide on their right to privacy (and also on their personal data), is increasingly important, although the consequences of voluntarily relinquishing this right are not always the desired or desirable ones, depending on the context.
It is true that, even though certain activities are shared on the internet, not everyone foresees the possibility or is interested in excesses in this regard. The concept of public, as well as that of private, is called into question.
The concrete impossibility, in certain circumstances, of preventing something from "going viral" in an unforeseen way, causes the individual to lose control over something that could originally have been restricted to only a specific group of people.
It is important to consider that, even if facts of private life are shared with others, they remain in the private sphere, given that a greater or lesser number of people – but not the general public – will know certain details.
This premise may not be accepted by everyone, considering that the private sphere can be widely shared through the communication devices we carry in our pockets and bags every day. Ordinary people are agents of this dissemination of private facts, and not just the press.
Despite this, it is clear that the social movements and questions about technological inventions that justified the writing of the 1890 article are not entirely different from what is happening today. Some questions about the right to privacy are renewed, while others arise regarding personal data.
New technological advances and the construction of personality rights.
Although the right to the protection of personal data also finds its origins in times prior to the popularization of computers and the internet, technological advances have also directly influenced the need to construct a theory to justify state protection.
While the right to privacy is more focused on issues of information and confidentiality, in Europe the concern has gone further, that is, it has focused on the processing of personal data and the so-called informational self-determination, which represents, in short, the right of a natural person to be aware of and able to control their circulating information.
Starting with seminal decisions in Germany, the doctrine of personality rights began to take shape on the European continent, generating direct repercussions in European Union legislation and, more recently, in the foundations of the LGPD (Brazilian General Data Protection Law).
Although there were previous precedents, it was in 1982 that the German Constitutional Court examined the local census law and the impacts of electronic data processing.
It was modern technological development that made possible the unlimited processing, storage, and transmission of data on a scale previously unknown.
As in the case of the aforementioned American article, despite a gap of approximately 100 years, technological evolution was considered by law in light of the risks of violating personality rights.
According to German law, there is a fundamental right to informational self-determination that guarantees the individual's power to fundamentally decide for themselves how their personal data is collected and used.
Modern electronic data processing techniques have led to the understanding that there is no such thing as insignificant data. This has been realized not only by the German judiciary, but also by the companies that are now known as Big Tech.
In recent decades, companies have realized that processing personal data can be more profitable than obtaining intimate and social information in isolation. New technologies have a processing and inference capacity regarding personal data that even Jules Verne could not have imagined.
The emergence of a new technological paradigm organized around new, more flexible and powerful information technologies makes it possible for information itself to become the product of the production process.
Now, the raw material of the information economy, which emerged in the last quarter of the 20th century, is personal data; therefore, it is up to the law to understand these new issues that arise, offering answers to the questions that are emerging from new human relationships and activities.
It is no longer simply a matter of debating the dichotomy between public and private, but of the potential harm that the misuse of personal data can cause to its owner, in a scenario where technology feeds on information.
From this perspective, the right to privacy, as originally conceived, does not address the social desires and issues surrounding the processing of personal data.
The issue of the right to privacy finds its place in the dichotomy of public versus private, while the right to the protection of personal data focuses on the analysis of personal data, its characterization, and the implications that its processing may generate for its owner.
Based on this premise, Bioni emphasizes that arguing that the right to the protection of personal data is merely an evolution of the right to privacy is a "flawed dogmatic construction" that hinders its understanding (2019, p. 99).
Conclusion
Rescuing early studies on privacy and exploring past and present social contexts, including in comparative law, marked by inventions that change our interpersonal relationships, is relevant to answering current questions that are sometimes the same as those of the past.
The concern about the violation of personality rights discussed here is an old one and, as is the case today, was largely linked to technological advances and the possibility of invasion of the private sphere. This has not changed completely; what exists is also the possibility of violation of personal data.
The current context, marked by the advent of personal computers and smartphones, which combine different forms of disseminating images, voices, written texts—that is, means of expressing personality—can affect both the right to privacy and the right to the protection of personal data.
In the information society, there are new demands that require regulation, a trend that has become more significant in recent decades and extends beyond the realm of private life.
Even though many of people's questions regarding their personality rights seem to be the same as in the past, the social context and available technological resources are far from the same. All of this will remain a subject of debate for many years to come, as technological advancements are unstoppable.
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References
BIONI, Bruno Ricardo . Personal data protection: the function and limits of consent . Rio de Janeiro: Forense, 2019.
CASTELLS, Manuel. The Network Society . 22nd ed. São Paulo: Paz e Terra, 2020. 1 vol. (The Information Age: Economy, Society and Culture).
MENDES, Laura Schertel. Habeas data and informational self-determination. Brazilian Journal of Fundamental Rights & Justice , v. 12, n. 39, p. 185-216, March 26, 2019. WARREN, Samuel D.; BRANDEIS, Louis D. The Right to Privacy. Harvard Law Review , Boston, v. 4, n. 5, p. 193-220, December 15, 1890. Available at: https://www.cs.cornell.edu/~shmat/courses/cs5436/warren-brandeis.pdf. Accessed on: July 06, 2021.