Freedom of Information, Part 2: Rights To Privacy And Copyright

Many people suffer from a little learning and that is a dangerous thing. In the Internet age, we also suffer from people having no education at all, thinking that the Internet is an open playground, in which one can do as one pleases. They think that they are allowed to take liberties. In some senses they are, because laws and rules cannot keep up with technology and gaps develop that need new thinking and new regulation. In the meantime, a lot of damage can be done.

One of my concerns has been how some see freedom of information as meaning freedom to invade privacy. The area is complex and I think that lawyers would take a different view from me on some matters.

One of the tricky areas is about ‘ownership’ and what is truly private and what is public. One aspect of this is copyright.

Google has a clear warning when it shows pictures: "Image may be subject to copyright". Why would Google place that notice on the information? It is meant to protect them and warn other users that there may be a ‘cost’ to using images: it is property and someone may be expecting a return (not necessarily monetary, maybe reputational).

If you type "dennis jones barbados" into a Google search, what do you find? Not a unique piece of information, but several that fit this crude search. When you look at images, one sees similar results. There is a picture of a "Dennis Jones" who appears to be a policeman in Nassau, NY. Is he the same as any other, or this, 'Dennis Jones'? Well, he is black, so he could be the same as another black one; maybe at a different time and different place. The simple message is that one needs to be careful—very careful.

Privacy is defined in law, and is not the same as public notions would assume. So, in almost every instance it is good to think whether or not what one is doing with information about another person could fall under some legal provision. That is a burden. But guess what? It is not meant to be that laziness is an excuse for abusing other people’s rights. Yes. You have an obligation to do due diligence.

A good place to go is the US Copyright Office website. It explains copyright and who and what it protects. You do not need to register to be protected. Also, ignorance of copyright is no defence.

When I first drafted this piece about a month ago, I had my own concerns about whether some things that I had done had infringed copyrights. I was ready for someone to make that claim and I was ready to correct my usage. So, it was really funny when I got a message from Tarik Browne this week. He pointed out that the image used was licensed under a Creative Commons licence (see link) that makes it easy for people to use images for non profit enterprises. However he did stipulate in the same licence he get credit for said image and a link back to the source page would be nice. He had found the image in a blog post of mine this February (see I Spy Strangers), and also spotted the photo used again without permission in the Nation's Friends Barbados magazine.

He was impressed with the way the Nation dealt with the issue, almost complete opposite to the Advocate, who seemed to scoff at my seeking some sort of recompense on principle. Mr. Browne reports that he got a call back from a head of department, who having been satisfied I was the original photographer, made amends and offered me payment at their standard rate and apologized. She also indicated to him that they are in the process of bringing processes up to date to avoid issues like this in the future, including external trainers coming in to brief the staff. All in all he was very impressed with the speed and caliber of response: he rang and left a message at just past 8am and had resolution before 12 noon.

For my part, I amended the post today to give him his credit and a link back to the source, as he had requested.

Freedom Of Information (FOI): Part 1--Basic Concerns And FOI Legislation

This is the first of a multi part series on freedom of information. Part 1 deals with the some basic concerns and the state of legislation in Barbados. Part 2 will look at rights to privacy. Subsequent parts may follow.

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My interests in freedom of information stem from several viewpoints.

• That of a person who is now in the 'business' of disseminating information (personally liable on several fronts).
• That of a person who receives information from others who ask that it be disseminated (need to confirm donor's rights to information and extent to which it can be disseminated).
• That of a person who has personal information, which has not been disseminated, that he may wish to protect and whose dissemination should be limited and only with permission (rights to personal privacy).
• That of a person who has given information to other organizations (governmental, corporate, social) and would like to be assured that they and others are not playing 'free and loose' with it (concerns with abuse of personal rights).

The issues concerning property rights are complex, and have changed much in an era where things are no longer simply 'brick, mortar, and land', but have taken on forms not previously envisaged, and whose tangibility is sometimes hard to determine. 'Property' can now be moved electronically and be in another place in nano seconds.

Some countries are known to be relative 'rogues', who care little to protect property rights because of the gains they may accrue. Some countries (ironically, some are the same 'rogues'), seek to limit access to information with various forms of state control. Laws on freedom of information are not universal, so one can move into a real minefield about what is 'right' and what is 'wrong'.

Benign use of information is often ignored and even welcomed. However, malicious use of information is a cause for general or particular concern. In that regard, one needs to look at intent as well as actions.

I became increasingly aware of freedom of information as I increasingly used the Internet. I hosted a website for the girls soccer team that I coached in the US. I know that the world is full of human predators, and young children are often their prey. In the American suburbs soccer is now the sport of choice, and girls soccer is hugely popular, thanks to legislative changes that gave girls equal opportunities in sports at schools and university--scholarships are on the line right up to the Ivy League schools. However, with that change of focus comes active parents; many were lawyers or legislators in the area where I lived. As soon as I broached the website idea, a non-working lawyer parent got me to copyright the site (I owned the team name and URL in various domains) and the team's name, but she owned the logo (which she had designed); she set up the necessary arrangements.

I tried to get assurances at all stages from parents and the administrative organizations for the team concerning the appropriateness of posting text and pictures to do with the team. If necessary, I sought written consent. As a minimum, I did not associate images with names. I tended to avoid solo shots, but used pictures of team play. If the team was being photographed by a professional photographer (even if he was a friend or parent), I tried to get an idea of what images had been taken and how they may be used. It's a lot of hard work and some hard areas to control. Though not absolute proof, I never heard of any abuse of our material and never heard any complaint from a parent or child (now adult).

Most of us think of freedom of information in terms of having a right to know things about government or corporate activities. We are often aware of, or suspicious that, institutions hide things that reflect badly on them, even though the public may also be at risk from what has been done and what is being hidden.

You would think that a strand of democratic thinking would lead to automatic creation of freedom of information legislation. But just look at Barbados. The current government entered the 2007 election campaign having announced they would introduce Integrity Legislation and Freedom of Information laws within 100 days of taking office in January, 2008, and also “immediately” declare a Ministerial Code with conflict of interest rules. Neither has happened yet, and we are over 18 months into the administration.

Last December, we heard that the government was still 'looking at it' (see Advocate December 12, 2008): "The drafting of integrity legislation and the Freedom of Information (FOI) Act 2008 are expected to be concluded in less than two months and soon after brought before Parliament." [my stress].

But eight months later, people are being told that the draft legislation will not be in Parliament until 2010. In last week's papers (see Advocate, August 10, 2009), Senator Orlando Marville, Chairman of the Advisory Board on Governance, and who heads the department charged with preparing the "highly-anticipated" legislation, but now long-overdue, did two things. First, he explained the process of Integrity and Freedom of Information legislation; its complexities; its time consuming nature. I have a general concern about the quality of government and governance. The cynic in me immediately asked whether these 'stumbling blocks' were just discovered; they should have been know at the start. As I coached, if in doubt, don't commit: 100 days is not very long, especially when you are brand new in a job.

Second, he reported that drafts of several new pieces of legislation aimed at improving transparency and accountability in Barbados, including integrity legislation, have been completed and sent to Cabinet. He "hopes" that all the work will be finished by January 2010. The integrity legislation is expected to include a Code of Conduct for Ministers.

We think that we can deal with the person peeping through our window because we can see him or her and give chase if needed. No one should feel that an open door means free entry and freedom to take whatever they find inside. We can try to call the police and see if together we can nab the culprit, or at least warn them off, or stop others from trying the same. We can try to have better security: we lock windows and doors; put up bars at windows; increase locks on doors; install alarms and sensors. All of that restricts our personal freedom--we become imprisoned.

But, the determined 'privacy invader' will always be looking for any crack through which to enter--like the loose plank in a fence. We hope that when our children are away from us the predators are not near them and that those who are in charge of our children truly have their interests at heart and will protect them. But in the Internet age we have issues of identifying perpetrators: there is no need to show or prove identity on the Internet. The 'truth' can also be hard to find, and many people are gullible. Imagine a world full of anonymous persons doing as they feel. That sounds like anarchy (total freedom but 'absence or denial of any authority or established order', lawlessness).

We hope that, without legislation, public officials or those with corporate responsibility will act honestly and fairly. But we have too much evidence that such standards are woefully lacking. Just comb the newspapers here or, better, elsewhere to find out about acts of malfeasance.

The need to protect information is important because we can all fall victim to abuse. People who utter malicious intent may be capable of carrying it out. We would not stand idle if a man with an iron pipe raised it and said, "I am going to hit you with this." The same applies, using the right metaphoricial changes, with information. If the laws need to be used, we know that ignorance is no defence (see Ignorance Is No Defence).