Abstract
I argue that a debate in information theory concerning whether information can be false has important implications for how we should understand the nature of informational privacy. In particular, these implications bear on whether we should understand such privacy as being restricted to facts or whether it can encompass falsehoods as well. I also argue that the stand we take on the latter issue has a significant bearing on the coherence and justification of what is known as false light privacy tort in American tort law.
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Notes
- 1.
The French proverb “Il n’y a que la vérité qui blesse” (It’s only the truth that hurts) expresses at best an exaggeration as is typical of proverbs. Yes, the truth does (sometimes) hurt, but whether it is only the truth that hurts proves to be a far more dubious claim.
- 2.
- 3.
Personal information pertains to someone as an individual rather than as a member of the public and can concern his or her mental or bodily states, mental or bodily actions, and tangible or intangible possessions.
- 4.
I urge those inclined to a semanticist skepticism about this debate and/or its importance—that is, a skepticism about this being a genuine debate about information itself as opposed to a merely semantic or verbal matter about how to use the term “information”—to bear in mind the following two considerations. First, the intricacy and variety of the arguments offered by proponents of both information veridicalism and non-veridicalism strongly suggest a genuine debate about information itself rather than a merely semantic or verbal matter. Second, semanticist skepticism is itself a thesis that needs to be argued for; to simply assume it begs the question against those who think a genuine debate obtains here.
- 5.
I leave open here the nature of propositions. See Le Morvan (2015a) for a discussion of the ontology of propositions and our knowledge of them.
- 6.
That is, Dretske, in what he calls the nuclear sense of “information,” contends that “false information and mis-information are not kinds of information—any more than decoy ducks and rubber ducks are kinds of ducks” (1981, p. 45).
- 7.
As Demir puts the point: “According to the Veridicality Thesis, information encapsulates truth. That is to say, any message with non-truthful content does not carry information… An important implication of this thesis is that misinformation and disinformation, despite the fact that they are prevalently used in daily life discourses as well as in empirical disciplines, are not types of information at all” (2014, p. 117).
- 8.
- 9.
Notice that in characterizing each of these theories Matheson uses the expressions “knows f” or “know f” where f is a personal fact. His doing so elides the distinction between objectual knowledge of f (where f is a true personal proposition) and factive knowledge that f is true (where again f is a true personal proposition). For discussion of this distinction, see Le Morvan (2015b). I trust that what he means by these expressions is “knows (or know) that a personal proposition is a fact.”
- 10.
The expression “factive privacy” may strike information veridicalists as redundant since for them information can only be factive. I use this expression, however, so as not to beg the question in favor of information veridicalism and in contrast with what I will later call “propositional privacy.”
- 11.
- 12.
Worth noting is that while information veridicalism and privacy veridicalism go hand in hand, privacy veridicalism does not entail information veridicalism, for one can coherently hold both that privacy only concerns personal facts but that information need not be true. In other words, while false information is possible, only true personal propositions or personal facts fall within privacy’s purview. Privacy non-veridicalism, by contrast, arguably does entail information non-veridicalism. This is because to hold that true and false propositions fall within privacy’s purview presumably entails also holding that false propositions count as information.
- 13.
Under Prosser’s influence, these were later codified in the American Law Institute’s Second Restatement of Torts which summarizes American common law concerning torts.
- 14.
The other two are: (1) Intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs; (2) Appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness.
- 15.
According to Prosser, the first such case occurred in 1816, when Lord Byron succeeded in prohibiting the circulation of a spurious and inferior poem attributed to him (Ibid., p. 398). Fictitious testimonial used in advertising is another example, as in an Oregon case where the plaintiff’s name was signed to a telegram sent to the governor urging political action that would have been illegal for the plaintiff, as a state employee, to advocate (Ibid., p. 398). Other more typical cases are spurious books and articles, or ideas expressed in them, purporting to come from the plaintiff, and the unauthorized use of a plaintiff’s name “as a candidate for office, or to advertise for witnesses of an accident, or the entry of an actor, without his consent, in a popularity contest of an embarrassing kind” (Ibid., p. 399).
- 16.
Examples given by Prosser include when “the face of some quite innocent and unrelated citizen is employed to ornament an article on the cheating propensities of taxi drivers, the negligence of children, profane love, ‘man hungry’ women, juvenile delinquents, or the peddling of narcotics, there is an obvious innuendo that the article applies to him, which places him in a false light before the public, and is actionable” (Ibid., p. 399).
- 17.
Cases of this include where the plaintiff’s name, photograph, and fingerprints are included “in a public ‘rogues’ gallery’ of convicted criminals, when he has not in fact been convicted of any crime,” an element of false publicity that goes beyond the police privilege to make such a record for legitimate purposes pending trial or even after conviction (Ibid., p. 399).
- 18.
For helpful discussion of this matter, see Wade (1962), Lasswell (1993), and Ray (2000). With regard to (1), Schwartz (1991) gives a number of useful examples including the following. A biographer fabricates stories of wartime heroism, false stories that a plaintiff may find highly offensive in showering him with unearned glory. In cases like this, the reputation of the plaintiff is not disparaged, but he is put in a distinctly awkward position of being bound to disappoint his associates as he approaches them with a reputation that he knows is undeserved. As an example of non-laudatory false light that differs from defamation, Schwartz (1991) mentions among others the case of Jonap v. Silver (1 Conn. App. 550, 474 A.2d 800, 1984) in which the defendant falsely signed the plaintiff’s name to a letter sharply criticizing the policies of the FDA. The plaintiff recovered in false light but not in defamation.
- 19.
Lake (2009) argues that false light causes of action should be subject to the same constraints that apply to defamation law.
- 20.
By this I mean that a normative case can be given for it whether or not a positive case can be given for it in law.
- 21.
As Parent who presupposes privacy veridicalism puts it: “The spreading of falsehoods or purely subjective opinions about a person does not constitute an invasion of his privacy. It is condemnable in the language of libel or slander” (1983b, 269, fn. 1). Parent understands personal information to consist of facts about a person, facts that he also characterizes as being such that “most individuals in a given society at a given time do not want widely known about themselves” (1983b, pp. 269–270).
- 22.
Interestingly, insofar as one person’s modus ponens can be another’s modus tollens, consider the following. To the extent that we regard false light privacy tort as a genuine tort, doing so gives us reason for accepting privacy non-veridicalism over privacy veridicalism. This is because such a putative tort does not cohere with privacy veridicalism but does with privacy non-veridicalism. And so, whatever reasons we may have for accepting the genuineness of false light privacy tort turn out to be reasons for preferring privacy non-veridicalism over privacy veridicalism.
- 23.
Being harmed is a necessary but not sufficient condition for being wronged.
- 24.
Adequately exploring these harms is a task too large to undertake here and one I will have to leave to another occasion.
- 25.
I should say here that it would be more accurate at this point to call this an incipient rather than a fully-fledged debate. This is because privacy veridicalism is typically assumed rather than argued for in the privacy literature. For the first time in this literature, Le Morvan (2015b) presents a case for privacy non-veridicalism over privacy veridicalism. A fully-fledged debate will occur insofar as an actual case (as opposed to mere assumption or even assertion) is adduced on behalf of privacy veridicalism.
- 26.
I have elsewhere defended privacy non-veridicalism (see the previous note). Doing so led me realize the interconnections of this position with the stands we may take on the first and third of the debates discussed in the present paper.
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Le Morvan, P. (2018). Information, Privacy, and False Light. In: Cudd, A., Navin, M. (eds) Core Concepts and Contemporary Issues in Privacy. AMINTAPHIL: The Philosophical Foundations of Law and Justice, vol 8. Springer, Cham. https://doi.org/10.1007/978-3-319-74639-5_6
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