Wresting informational privacy from free speech

Abstract

This paper deals with the conflict between privacy rights and freedom of speech. Courts have upheld freedom of speech to the detriment of the privacy interest. Even when the information is false, courts have been reluctant to allow restrictions on the collection and dissemination of personal information. To establish a stronger case for privacy, we concentrate on a special type of privacy: privacy of Personal Identifiable Information (PII). Two aspects are crystallised in order to focus on this privacy/free speech confrontation. First, PII is defined as processable information that refers to uniquely identifiable persons. This would exclude personal information embedded in raw data such as casual oral gossip. Second, acting on personal information is limited to the initial phase of the personal information flow model. This model includes four phases: the creation, gathering, processing and disclosing of personal information. The foundation for our thesis is: restrictions on the creation of PII are necessary for free speech.