Personal vs Public: Rethinking Privacy

An incident I recently witnessed in my neighbourhood has caused to me to rethink how we should be defining “privacy”. Data protection is one thing, but when our privacy can be compromised via the direct connection between the digital and analog worlds, all the cyber security in the world doesn’t protect us against unwanted nuisance, intrusion or even invasion of our personal space.

Pressefotografen mit KamerasScenario

As I was walking along the street, I saw another pedestrian stop outside a house, and from the pavement, use her smart phone to take a photograph through the open bedroom window. Regardless of who was inside, and irrespective of what they were doing (assuming nothing illegal was occurring), I would consider this to be an invasion of privacy.

For example, it would be very easy to share the picture via social media, along with date and location data. From there, it could be possible to search land registries and other public records to ascertain the identity of the owners and/or occupants. And with a little more effort, you might have enough information to stalk or even cyber-bully them.

Privacy Law

Photographing people on private property (e.g., in their home) from public property (e.g., on the street outside) is not an offence, although photographers must not cause a nuisance nor interfere with the occupants’ right of quiet enjoyment. Our current privacy laws largely exclude this breach of privacy (unless it relates to disclosure of personal data by a regulated entity). Even rules about the use of drones are driven by safety rather than privacy concerns.

Since the late 1990’s, and the advent of spam and internet hacking, there have been court decisions that update the law of trespass to include what could be defined as “digital trespass”, although some judges have since tried to limit such actions to instances where actual harm or damage has been inflicted on the plaintiff. (Interestingly, in Australia, an act of trespass does not have to be “intentional”, merely “negligent”.)

Apart from economic and financial loss that can arise from internet fraud and identity theft, invasion of privacy via public disclosure of personal data could lead to personal embarrassment, damage to reputation or even ostracism. (In legal terms emotional stress falls within “pain and suffering”).

Data Protection Law

The Australian Privacy Principles contained within the 1988 Privacy Act apply to government agencies, private companies with annual turnover of $3m or more, and any organisations trading in personal data, dealing with credit information or providing health services. There are specific provisions relating to the use and misuse of government-derived identifiers such as medical records and tax file numbers.

The main purpose of the privacy legislation is to protect “sensitive” information, and to prevent such data being used unlawfully to identify specific individuals. At a minimum, this means keeping personal data such as dates of birth, financial records or hospital files in a secure format.

Some Practical Definitions

The following are not legal definitions, but hopefully offer a practical framework to understand how we might categorise such data, and manage our obligations towards it:


Secret information that must not be disclosed to anyone unless there is a legal obligation or permission to do so. (There are also specific issues and exceptions relating to “classified information”, public interest matters, whistleblower protection and Freedom of Information requests.)


Information which is not for public or general consumption, although the data itself may not be “confidential”. May still be subject to legal protection or rights, such as the right of adopted children to discover the identity of their birth parents, or the right of someone not to be identified as a lottery winner.


Data that relates to, or can specifically identify a particular individual. An increasing issue for Big Data, because data that otherwise resides in separate locations can now be re-connected using triangulation techniques – scrape enough websites and drill down into enough databases, and you could probably find my shoe size.


Anything that has been published, or easily discoverable through open search or public database retrieval (but, for example, does not include my past transactions on eBay unless I have chosen to disclose them to other users). My date of birth may be a matter of record, but unless you have authorised access to the relevant database or registry, you won’t be able to discover it and you certainly shouldn’t disclose it without my permission.

Copyright Law

One further dimension to the debate is copyright law – the ownership and related rights associated with any creative works, including photographs. All original content is copyright (except those works deemed to be in the “public domain”), and nearly all copyright vests with the person who created the work (unless they have legally assigned their copyright, or the material was created in the course of their employment).

In the scenario described above, the photographer would hold copyright in the picture they took. However, if the photograph included the image of an artwork or even a framed letter hanging on the wall, they could not reproduce the photograph without the permission of the person who owned the copyright in those original works. In some (limited) situations, a photograph of a building may be subject to the architect’s copyright in the design.

Curiosity is not enough justification to share

My personal view on all this is that unless there is a compelling reason to make something public, protecting our personal privacy takes precedent over the need to post, share or upload pictures of other people in their private residence, especially any images taken without the occupants’ knowledge or permission.

Just to clarify, I’m not referring to surveillance and monitoring by the security services and law enforcement agencies, for which there are understandable motives (and appropriate safeguards).

I’m saying that if we showed a little more respect for each others’ personal space and privacy (particularly within our homes, not just in cyberspace) then we might show a little more consideration to our neighbours and fellow citizens.

Next week: It’s OK to say “I don’t know”

A couple of No-No’s for content marketers

If you are just getting started in content marketing, or if social media is still a bit of a novelty for your organisation, there are a couple of things you should definitely avoid when attempting to use third-party content for your own promotional purposes: don’t misappropriate, and don’t misrepresent.

All marketers will be alert to false, deceptive or misleading advertising. More experienced content developers should also understand legal issues such as plagiarism, copyright infringement, passing-off and libel. However, even seemingly innocent and well-intentioned references made to third-party content may inadvertently border on unconscionable conduct.

Last week, I had the rather disturbing experience of a company attempting to use my blog to promote a service, and in a way that not only implied I was endorsing that service, but also suggested that my blog was somehow the reason why customers should sign up for it.

I found this problematic for three reasons:

First, I had no knowledge of or connection with this particular service, and the promotional message gave the impression I was endorsing it, which was obviously misleading, and it quoted my article out of context. At an extreme level, if I ever wrote a blog about the “10 reasons why I take public transport”, and then a political party co-opted my content to say “10 reasons why you should vote for our transport policy”, that would be misappropriation (of my content) and misrepresentation (of my views).

Second, even though the service referred to was being offered for free, if the company had managed to generate new clients via this particular campaign, there’s no direct benefit to me or my business, but lots of benefit to the company and/or its partners. In this increasingly self-directed, interconnected and collaborative environment, it’s important to make sure we are all “paying it forward” in a constructive and mutually beneficial way. (I have no problem with receiving a referral fee or a direct benefit in kind if my efforts have been instrumental in securing new customers for your business!)

Third, I am fortunate that a number of my blog articles have been re-syndicated via social media and other channels. In writing about third-party products and services, I am very careful not to endorse specific businesses or brands, other than to mention names (and link to relevant sites). Where I am providing criticism, I endeavour to do so under the auspices of “fair comment”. This is important when establishing credibility with an audience: that my content is seen to be authentic, that I demonstrate awareness about the purpose and context of my blog, and that I attribute whenever I am referencing or citing third-party content. (See an earlier blog I wrote on this topic) But, if in doubt, always ask the content owner in advance before linking, referencing, quoting, attributing or re-contextualising their content.

Finally, if I can be of any assistance in relation to your own content marketing, please let me know via this site.

F for Facsimile: What are ‘Digital Forgeries’?

Last week, I attended the 2014 Foxcroft Lecture, given by Nicholas Barker, entitled “Forgery of Printed Documents”. The lecture prompted the question, what would we consider to be a ‘digital forgery’?

Make Up

The lecture was an investigation into a practice that emerged in the 18th century, when reproductions (‘fac similes’ – Latin for ‘make alike’) of early printed texts were created either as honest replicas, or to enable missing pages from antiquarian books to be restored to ‘make up’ a complete work. In some cases, the original pages had been removed by the censors, for others the pages had been left out in error during the binding process, and mostly they had simply been lost through damage or age.

Other factors created the need for these facsimiles: the number of copies of a book that could be printed at a time was often limited by law (censorship again at work), or works were licensed to different publishers in different markets, but printed using the original plates to save time and money.

Despite the innocent origins of facsimiles, unscrupulous dealers and collectors found a way to exploit them for financial gain – and of course, there were also attempts to pass off completely bogus works as genuine texts.

Replication vs Authentication

Technology has not only made the mass reproduction of written texts so much easier, it has also changed the way physical documents are authenticated – for example, faxed and scanned copies of signed documents are sometimes deemed sufficient proof of their existence, as evidence of specific facts, or in support of a contractual agreement or commercial arrangement. But this was not always the case, and even today, some legal documents have to be executed in written, hard-copy form, signed in person by the parties and in some situations witnessed by an independent party. For certain transactions, a formal seal needs to be attached to the original document.

Authenticating digital documents and artifacts present us with various challenges. Quite apart from the need to verify electronic copies of contracts and official documents, the ubiquity of e-mail (and social media) means it has been a target for exploitation by hackers and others, making it increasingly difficult to place our trust in these forms of communication. As a result, we use encryption and other security devices to protect our data. But what about other digital content?

Let’s define ‘digital artifacts’ in this context as things like software; music; video; photography; books; databases; or digital certificates, signatures and keys. We know that it is much easier to fabricate something that is not what it purports to be (witness the use of photo-editing in the media and fashion industries), and there is a corresponding set of tools to help uncover these fabrications. Time stamping, digital watermarks, metadata and other devices can help us to verify the authenticity and/or source of a digital asset.


In the case of fine art, the use of digital media (as standalone images or video, as part of an installation, or as a component in mixed media pieces) has meant that some artists have made only a single unique copy of their work, while others have created so-called ‘multiples’ – large-scale editions of their work. (The realm of ‘digital works’ and ‘digital prints’ produced by photographers and artists is worthy of a separate article.)

Making copies of existing digital works is relatively simple – the technology to reproduce and distribute digital artifacts on a widespread scale is built into practically every device linked to the Internet. Not all digital reproduction and file sharing is theft or piracy – in fact, through the wonders of social media ‘sharing’, we are actually encouraged to disseminate this content to our friends and followers.

The song doesn’t remain the same

Apart from the computer industry’s use of product keys to manage and restrict the distribution of unlicensed copies of their software, the music and film industries have probably done the most to tackle illegal copying since the introduction of the CD/DVD. At various times, the entertainment industries have deployed the following technologies:

  • copy-protection (to prevent copies being ripped and burned on computers)
  • encryption (discs and media files are ‘locked’ to a specific device or user account)
  • playback limits (mp3 files will become unplayable after a specific number of plays)
  • time expiry (content will be inaccessible beyond a specific date)

Most of these technologies have been abandoned because they either hamper our use and enjoyment of the content, or they have been easy to over-ride.

One technical issue to consider is ‘digital decay’ (*) – mostly, this relates to backing up and preserving digital archives, since we know that hard drives die, file formats become obsolete and software upgrades don’t always retrofit to existing data. But I wonder whether each subsequent copy of a digital artifact introduces unintentional flaws, which over time will generate copies that may render nothing like the original?

In the days of analogue audio tape, second, third and fourth generation copies were self-evident – namely, the audible tape hiss, wow and flutter caused by copying copies, by using machines with different motor speeds, and by minor fluctuations in power. Today, different file formats and things like compression and conversion can render very different versions of the ‘same’ digital content – for example, most mp3 files are highly compressed (for playback on certain devices) while audiophiles prefer FLAC. Although this is partly a question of taste, how do we know what the original should sound like? With a bit of effort, we can re-process an ‘original’ downloaded mp3 into our own unique ‘copy’ which may sound very different to the version put out by the record company (who probably mastered the commercially released mp3 from studio recordings created using high-quality audio processing and much faster data sampling rates).

So, would the re-processed version be a forgery?

(*) Thanks to Richard Almond for his article on Digital Decay which I found very useful.








Publishers’ Choice: Be a Victim, or Join the Vanguard?

I recently posted a blog about saving the Australian publishing industry, prompted by some research I was doing on government-sponsored initiatives, notably EPICS and BISG. This generated a couple of (indirect) responses, one from the Department of Industry itself, the other from a long-time colleague in the industry. More on these later.

The future of publishing - circa 2000....

The future of publishing – circa 2000….

But first, some more industrial archeology, by way of demonstrating that book publishers are not shy about new technology – remember the first electronic ink? When I was working at the Thomson Corporation in the late 1990s, we were given access to a prototype version of what we would now recognise as an e-reader. It was about the size and thickness of a mouse pad but less flexible, and could only hold a small amount of data in its memory (content was uploaded via an ethernet cable). It was described as the future of book publishing, and was predicated on the idea of portability (it could be rolled up like a newspaper if the screen was thin and pliable enough), and updating it with new content whenever it was (physically) connected to a computer or the internet.

However, whatever their apparent appetite for new technology, publishers struggle to adapt their business models accordingly, or they are fixated on “old” ways of monetizing content, and locked into traditional supply chains, archaic market territories (geo-blocking), restrictive copyright practices and arcane licensing agreements; and unlike other content providers (notably music, TV and newspapers which have shifted their thinking, albeit reluctantly) the transition to digital is still tied to specific platforms and devices, unit-based pricing and margins, and territorial restrictions.

Anyway, back to the future. In response to my enquiry about the outcome of the BISG initiative, and the creation of the Book Industry Collaborative Council (BICC), the Department of Industry offered the following:

“A key outcome of the BICC process was to have been the establishment of a Book Industry Council of Australia, an industry-led body based on the residual BICC membership that would come to be a single point of policy communication with government, though following its own reform agenda in the identified areas and unsupported by any taxpayer funding. Terms of Reference and so forth were drawn up but as nearly as we can ascertain from media monitoring and contacts, the BICA was never formed. It appears the industry is waiting to ascertain what the current government’s policy priorities might be, as expressed in the outcomes of the current Commission of Audit and Budget, before possibly resurrecting the BICA concept and/or the policy issues identified in the BICC report.” (emphasis added)

My read on this is that the industry won’t take any initiatives itself until it knows what the government might do (i.e., let’s wait to see if there are any handouts, and if not, we can plead a special case about the lack of subsidies/protection and the threat of extinction…).

This defeatist attitude is not just confined to Australia – my former colleague recently attended the 2014 Digital Book World Conference in New York. He commented:

“I was disappointed to see the general negativity of the publishing industry and the “victim” like mentality – also the focus on the arch-enemy – AMAZON! I see great opportunities for content – but companies have to get their head around smaller micro transactions and a freemium model. Big publishers are “holding on” to margins – it’s a recipe for disaster – [but] I think we can become small giants these days.”

There are some signs that the industry is taking the initiative, and even grounds for optimism such as embracing digital distribution in Australia, moving to a direct-to-consumer (“D2C”) model in the USA, and new approaches to copyright and licensing in the UK.

The choice facing the publishing industry is clear: continue to see itself as a victim (leading to a self-fulfilling prophecy of doom and extinction), or become part of the vanguard in developing leading-edge products and services for the digital age.