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Minds & Machines (2011) 21:517–532

DOI 10.1007/s11023-011-9257-8

The Changing Meaning of Privacy, Identity


and Contemporary Feminist Philosophy

Janice Richardson

Received: 11 June 2011 / Accepted: 8 August 2011 / Published online: 7 September 2011
 Springer Science+Business Media B.V. 2011

Abstract This paper draws upon contemporary feminist philosophy in order to


consider the changing meaning of privacy and its relationship to identity, both online
and offline. For example, privacy is now viewed by European Court of Human Rights
(ECtHR) as a right, which when breached can harm us by undermining our ability to
maintain social relations. I briefly outline the meaning of privacy in common law and
under the European Convention on Human Rights (ECHR) in order to show the
relevance of contemporary feminist thought, in particular the image of selfhood that
stresses its relationality. I argue that the meaning of privacy is in the process of
altering as a result of a number of contingent factors including both changes in
technology, particularly computer mediated communication (CMC), and changes in
the status of women. This latter point can be illustrated by the feminist critique of the
traditional reluctance of the liberal state to interfere with violence and injustice
within the ‘‘privacy’’ of the home. In asking the question: ‘‘how is the meaning of
‘‘privacy’’ changing?’’ I consider not only contemporary legal case law but also
Thomas Nagel’s influential philosophical analysis of privacy. Nagel’s position is
useful because of the detail with which he outlines what privacy used to mean, whilst
bemoaning its passing. I agree with his view that its meaning is changing but am
critical of his perspective. In particular, I challenge his claim regarding the traditional
‘‘neutrality of language’’ and consider it in the context of online identity.

Keywords Privacy  Feminism  Law  Identity  CMC

Introduction: The Traditional Image of Privacy

The feminist philosopher Hampton (2007, 8) comments that philosophy often relies
upon unacknowledged pictures of the world and that it is these mental images that

J. Richardson (&)
Monash University, Melbourne, VIC, Australia
e-mail: Janice.richardson@Monash.edu

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form the basis of written arguments. I want to look at a particular image that lies at
the heart of the traditional view of privacy in the West in order to examine ways in
which our experience of privacy is now changing. The traditional image of privacy
evokes a picture of an individual, who sits at the centre of a series of concentric
circles that range from the most private to public. In the first circle is the
individual’s innermost thoughts and those actions that Mill (2008, 18) describes as
‘‘self-regarding’’ (i.e. that do not encroach directly upon others). In the next
concentric circle is the family and home. Outer circles then include work and civil
society and in the outermost circle lies the realm of politics. In this image, the divide
between public and private appears clear and is often related to a particular place:
the home, work place, public buildings, parliament.
It is necessary to look more closely at the second sphere that surrounds the
individual, which is associated with the family and domestic home. In this picture,
the home is private property, i.e. a place from which others can be legally excluded.
The ‘‘individual self’’ is not gender neutral in this traditional image of privacy. In
his recent book Self comes to mind: Constructing the Conscious Brain, Antonio
Damasio comments on James (1957, 291),
James thought that the self-as-object, the material me, was the sum total of all
that a man could call his - ‘not only his body and his psychic powers, but his
clothes, his wife, his children, his ancestors and friends, his reputation and his
works, his lands and horses, and yacht and bank account.’ Leaving aside the
political incorrectness, I agree1 (Damasio 2010, 9)
For my purposes, the historical ‘‘political incorrectness’’ is relevant. My aim is to
consider the changing meaning of privacy in Western society and also to illustrate
that this is intimately associated with our cultural understanding of selfhood, which,
in association with privacy, is also changing. In this traditional image of privacy, the
individual is generally imagined as male. The private sphere of the home included
his family but he was then able to go outside of this domestic sphere (into work,
civil society and the realm of politics) and to act in public. In contrast, women were
envisaged as situated within the private sphere of the home. (This is an ideal sketch
and not a claim that working class women did not have to work.) Ironically, as
Woolf (2002) points out, the home was not straightforwardly a private place for
women, who had to fight for a ‘‘room of one’s own’’ within the home itself.
The concept of the public/private divide allowed political theorists to trivialise
women’s struggles against abuse of power by men. Such abuse was characterised as
concerning only ‘‘private’’, personal issues, which lay in contrast with civil society
and with the grand affairs of state. Hence, political theory concerned itself with the
relationship between the individual and state. In modernity, this has meant paying
attention to the question of the legitimation of the state, whilst ignoring the abuses
of power that took place in ‘‘private’’. Gender hierarchy continued to be viewed as
natural well after the naturalness of class hierarchies between male (white) citizens

1
Online selves could now be added to this list as there is no reason to assume that these are any less
‘‘me’’ than my bank account. I will discuss online identity below.

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had been challenged by early modern political thinkers from Hobbes (1994) in 1651
to the liberal social contractarian tradition.
In the West,2 we now live at a time when our view of privacy has altered as a
result of both women’s struggles, which have successfully challenged the idea that
women’s place is in the home and by the separate development of technology, in
particular CMC which gives rise to online identities. Both these changes are in the
process of undermining the traditional picture of the individual, described above.
This is a change with political implications. This image of the private individual,
cut off from others in his private property has been central to liberalism. It is
associated with the early modern liberal desire to delineate an area of self-
development in which individuals were not to be subject to state interference. It is
not necessary to hold onto this traditional image of privacy, which left no space in
which to challenge injustice within the home, in order to defend individual legal
rights generally. However, liberals, such as Rawls (1971), despite their potentially
progressive ideal image of free and equal persons, have still to learn that the
family is not always a just or even a voluntary association. It is certainly not a
voluntary association as far as children are concerned. Hence, the patriarchal
family may teach children a lesson in the ‘‘naturalness’’ of subordination that
undermines other liberal ideals such as moral education and democracy (Okin
1989, 89–108; Nussbaum 2002).
I will illustrate how this traditional image of privacy is being rethought by
looking at two areas in which it is being analysed in detail today: in the law courts
and in philosophy. My choice of examples is necessarily selective. However, I have
not chosen bodies noted for their willingness to embrace radical change in order to
support my view that the meaning of privacy is changing. On the contrary, the
common law courts, by virtue of following precedent, are necessarily backward
looking, leaving aside the conservatism of judiciary (in the UK) that arises because
of the way in which they are selected (Griffith 2010). Similarly, I examine Nagel’s
(1998) arguments, which are self-consciously conservative, albeit that they
recognise change. Both the courts and Nagel’s analysis provide subtle descriptions
of the phenomenology of privacy. They are sources of information as to how
particular attitudes to privacy have been lived out, rather than providers of abstract
definitions of the term. The common law courts tend to leave their definitions open.
For example, as I will discuss below, the UK common law test is circular, defining
privacy rights as existing when the claimant has ‘‘a reasonable expectation of
privacy’’ that is not outweighed by public interest in free speech. The courts thereby
leave themselves discretion to take into account new situations that give rise to
litigation, arising from new technology or changes in social mores, for example.
Similarly, Nagel discusses specific examples of ‘‘our’’ experience, drawing upon
both literature and anecdote to illustrate how he perceives the loss of certain values
inherent in traditional respect for privacy.
Having made this point, it is useful to situate these analyses of privacy within the
considerable literature that does attempt to define the term. The meaning of privacy

2
For a useful examination of Eastern approaches to the self in the context of privacy see Hongladarom
(2009).

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in everyday life certainly does not reduce to the content of a legal right. This would
not be possible, given that the content is difficult to predict even by media lawyers.
(As explained above, the common law courts are currently being creative in this
area because they are faced with new situations arising from new technology. In
addition, the UK courts have been adapting the common law to the ECHR since the
Human Rights Act 1998 (HRA) came into effect in October 2000.) Definitions of
privacy may make claims as to what the law should enforce but the law is not
always called upon to enforce moral beliefs. The definitions of privacy both within
and outside of legal theory often fit neatly within (and draw from) the traditional
image of the individual described above. For example, in their paradigmatic work,
which was written with the aim of changing the US common law, Warren and
Brandeis (1890, 194) describe privacy as ‘‘the right to be let alone’’, a definition that
overlaps with negative freedom (Berlin 1969). To highlight that this is a liberal
concept, it can be contrasted with the meaning of freedom for republicans, which
entails being an active participant in democratic decision-making (Constant 1988).
The image of the individual in some definitions of privacy moves beyond liberalism
to neo-liberalism, embracing a view of ourselves as homo economicus.3 Fried (1984)
starts with a picture of individuals as cut off from others, who therefore require a
mechanism through which they can relate to each other. This mechanism is that of the
market and he envisages the exchange of private information (in place of money and
goods) as the basis of human interaction in intimate relationships. Without privacy, we
are deprived of secrets that we can ‘‘spend’’ on those with whom we would be intimate.
For Fried, we own and have rights over our human attributes in the same way as we are
envisaged as owning property, albeit a special kind of property:
The entitlements of privacy are not just one kind of entitlement among many
that a lover can surrender to show his love. Love or friendship can be partially
expressed by the gift of other rights – gifts of property or of service. But these
gifts without the intimacy of shared private information, cannot alone
constitute love or friendship. (Fried 1984, 211)4
Tavani (2007) usefully categorises theories of privacy into four types and
associates them with other values: non-intrusion (the right to be let alone, akin to
negative liberty, discussed above), seclusion (the right to be inaccessible to others;
akin to solitude), limitation (the right to restrict areas of knowledge about oneself;
akin to secrecy) and control (the right to be able to control the dissemination of
information about oneself, akin to autonomy). Instead of refining a definition, my
aim is to consider particular experiences of invasions of privacy and how they have
been characterised by the courts and by Nagel; to consider how the meaning of
privacy has been associated with a way of life that is changing.

3
For a discussion of different concepts of self within the social contract tradition see Richardson (2009).
4
For a critique of this market-orientated approach to privacy see Floridi (2006, 115–116). For a broader
critique of the political implications of this view of ourselves as owners of ‘‘property in the person’’ such
that aspects of ourselves are treated as commodities in a market see Marx (2004, 280), Pateman (2002),
Cohen (1995).

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The Changing Meaning of Privacy 521

Changes in Our View of Privacy: A Sketch of the Background Common


Law/European Law

I will illustrate how case law has applied the traditional image of privacy and has
more recently moved away from it, shifting from viewing privacy as the ‘‘right to be
let alone’’ to emphasise the ability to safeguard close relations with others. As such
it moves from the traditional view of the individual to emphasise relations with
others, who are not necessarily part of the family. This is not to claim that the law
dictates cultural views. However, like philosophy, it does have a role in reflecting
and developing them. It provides a forum in which they are discussed and
crystallised. Whereas the US has developed privacy rights so as to include rights to
abortion and contraception, these ‘‘decisional rights’’ were statutory in the UK, most
European countries and some Australian states, and so privacy law has taken a
different direction. As discussed, prior to the coming into force of the HRA, the UK
did not have a common law tort that protected privacy. The only cause of action that
was available was that of ‘‘breach of confidence’’, a position that is generally still
reflected in Australia.
This basis for litigation required proof of a confidential relationship between the
parties. Whilst the paradigm case was that of a business relationship, it was held that
marriage was a confidential relationship such that a husband could not publicise
details of his wife’s pre-marital sex life told to him in confidence during the
marriage (Argyll v Argyll [1967]5). In this case, Judge Thomas-Ungoed was very
clear that the law should not interfere with marriage but that, in his judgement, he
was protecting marriage. The precedent would allow married couples to disclose
private information to each other without worrying that it could be the subject of
later publicity if the relationship went sour. As such, the courts were willing to
enforce the privacy of the family that was previously enforced by social mores, to be
discussed in the section on Nagel below. This view of privacy had the advantage
that Lady Argyll could not be subject to prurient interest (and sexual double
standards) because of revelations made to the press. At the same time pressure to
remain silent about details of the marital relationship had the disadvantage of
discouraging discussions of abuse within the home. Argyll v Argyll [1967] now has
its contemporary CMC equivalent in ‘‘revenge porn’’, in which disgruntled former
partners upload images of their wives/girlfriends naked or having sex, with the aim
of humiliating them. Damages were awarded in the Australian breach of confidence
case of a wife whose husband, without her knowledge, recorded them having sex
and gave the video tapes to her employer and relatives. This is likely to be used as
common law precedent in cases of online publicity.6
In the UK, pre-HRA intrusions upon privacy that did not involve breach of
confidence were only actionable under the tort of battery or trespass, where relevant
5
Argyll v Argyll [1967] 1 Ch. 302.
6
Giller v Procopets [2008] VSCA 236. Depending on the jurisdiction, the civil courts (compared with
criminal) allow the woman, if she can fund it, to get to court quickly for an injunction, keeping greater
control of proceedings, to join a internet provider in the same proceedings to expedite the removal of the
image and to go for damages. The burden of proof is on the balance of probabilities so it is also easier to
prove fault.

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(Wainwright v Home Office [2002]7). After the HRA, common law case decisions
must, as outlined, not only follow precedent in the usual way, but must also give
effect to the ECHR. This has the effect of extending the equitable remedy of
‘‘breach of confidence’’ so that a pre-existing relationship is not required and the
material facts relate only to the content of the information itself.8 The current
common law test is that of Campbell v MGN [2004]:9 would someone in the
position of the claimant have a reasonable expectation of privacy? If this is the case
then Art. 8 ECHR (‘‘the right to respect for his private and family life, his home and
his correspondence’’, subject to s 8(2) exceptions in the interests of national
security, public safety etc.) is balanced with Art. 10 rights (‘‘to freedom of
expression’’ subject to s10(2), which states exceptions). There is precedent that both
medical information (Campbell v MGN [2004] itself) and sexual information (Max
Mosley v News Group Newspapers [2008])10 is likely to raise the reasonable
expectation of privacy from the perspective of the claimant.
The case facts involved a model, Naomi Campbell, who had previously claimed
in public that she did not take drugs. The Mirror Newspaper wrote an article stating
that she had been attending a drug rehabilitation clinic, giving details of the clinic’s
treatment from a source within the support group and publishing a photograph of
Campbell in a street, having just left the clinic. The Mirror argued that they had the
right to set the record straight and this element of ‘‘public interest’’ (relevant to Art.
10) was agreed by both parties. The case was based upon Campbell’s (ultimately
successful) argument that the photograph, along with the additional reporting of her
treatment, were unnecessary to put the record straight and should not have been
included in the publication. The House of Lords voted 3-2 in Campbell’s favour, the
dissenting judges arguing that these details were superfluous. However, the majority
were concerned that to allow such reporting would discourage others in Campbell’s
position from seeking medical treatment. Hence, in terms of the legal test, it was
held that medical treatment raised reasonable expectations of privacy by the
claimant and that this was not outweighed by concerns for freedom of information,
beyond the public interest in making known the bare facts in order to set the record
straight where there had been lies to the public. In her judgement, Lady Hale was
also concerned that Campbell would have felt betrayed by the informant. Her
analysis did not involve simple definitions of privacy (in terms of an absence of
control over information or a right to be left alone, for example) but explored the
broader impact of this particular situation upon the claimant and upon any future
claimants in her position, who would be affected by the legal precedent being set.

7
Wainwright v Home Office [2002] Q.B. 1334. Note ECtHR disapproval of the UK failure to provide a
remedy to this unlawful strip search in breach of prison rules, prior to the enactment of HRA, in
Wainwright v UK (2006) 156 N.L.J. 1524.
8
The House of Lords had already moved in this direction in the pre-HRA case Attorney General v
Guardian Newspapers (No 2) [1990] 1 AC 109 ‘‘Spycatcher Case’’. There was no relationship between
the defendant newspaper and the claimant but the information concerned official secrets. For the House of
Lords, this was sufficient to grant an injunction initially (until the information was too widely available to
be viewed as confidential).
9
Campbell v Mirror Group Newspapers [2004] 2 AC 457.
10
Max Mosley v News Group Newspapers [2008] EWHC 1777.

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Since the Campbell test, blogs have been treated as public statements so the
names of anonymous bloggers have not been protected. In the case of Author of a
Blog v Times Newspapers Ltd [2009],11 involving ‘‘Night Jack’’ a policeman who
blogged anonymously about his job, Judge Eady was not impressed by the argument
that the court should protect him from discipline by his employers and viewed him
as akin to a reporter. Of course, the gutter press has pursued women (when they
have blogged about sex) with the aim of exposing their identities—keen to keep
alive sexual double standards. This raises some interesting questions about the
psychological relationship between someone’s online and offline identity, which I
will in the next section.
In Sheffield Wednesday Football Club Ltd v Hargreaves [2007],12 Hargreaves,
who owned and operated the football fans’ web site, was ordered to disclose the
identities and addresses of football fans who had made potentially defamatory
allegations about the club officials, so that the fans could be sued. The fans had
assumed that they were writing anonymously online. However, from a legal
perspective, failure to reveal their identities would be to treat the internet as a
medium in which existing laws could be thwarted. The potentially wide
dissemination of chat room comments means that they differ greatly from those
made in a pub, even though the fans may not experience the difference. The fans’
faulty perception of the fan site as private fits with empirical research by
Sveningsson-Elm (2008, 83) in which she found that participants online may
perceive it as a private space where they are free to disclose intimate information,
despite the actual publicity involved. This may well alter as there is greater publicity
around the repercussions of online statements.
Turning from the common law to the ECtHR, the case of Peck v UK [2003].13
demonstrates a change in the courts’ view of privacy from the traditional model. Mr.
Peck attempted suicide with a knife at night on a UK street. Inevitably, given the
UK government’s penchant for surveillance, it was picked up on CCTV and the
police were dispatched to stop him. Fortunately, they were able to do so. Sadly, the
CCTV footage of his attempted suicide was released by his local authority and
shown on a BBC crime programme. Despite the use of pixellation, it was possible
for those who knew Peck to identify him from the trailer to the show. He had no
right of action in the UK because the programme was shown prior to the bringing
into force of the HRA. This meant that he had to make a claim against the UK
government itself for failing to implement Art. 8 ECHR, thereby leaving him
without legal redress against the council who released the CCTV footage and the
BBC, who showed it. He was successful and the ECtHR held that, by failing to
allow him the right to protect his privacy, the UK was in breach of the ECHR.
Peck’s privacy right had been breached because the disclosure had undermined his
relations with others: those close to him, who were suddenly made aware of his
suicide attempt and other relationships he may wish to establish. The court stated
that Art. 8,
11
Author of a Blog v Times Newspapers Ltd [2009] EWHC 1358 (QB).
12
Sheffield Wednesday Football Club Ltd v Hargreaves [2007] EWHC 2375 (QB).
13
Peck –v- UK [2003] EMLR 15.

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protects a right to identity and personal development, and the right to establish
and develop relationships with other human beings and the outside
world…There is therefore a zone of interaction of a person with others, even
in a public context, which may fall within the scope of ‘‘private life’’. (Peck –
v- UK [2003] EMLR 289)
For the ECtHR, the right to privacy is no longer associated only with the domestic
sphere, nor is it protecting an isolated individual’s right to be let alone. It is
protecting our relationships as central to our identity.
A corollary to this shift is the idea that there is an important difference between a
group of people knowing information about us and the world at large being aware of
the facts. Previously, any exposure of a secret from the individual to the next level
of privacy within the traditional model, i.e. those with whom s/he is intimate,
opened the claimant to the defendant’s argument that the information was no longer
to be classified as ‘‘private’’. In Australian common law, this argument was made
unsuccessfully by Australian Broadcasting Corporation (ABC). They had published
the identity of a rape survivor, referred to in the case as Jane Doe. Jane Doe had told
some intimates of the rape, which the ABC argued prevented it from being
‘‘private’’ information. Fortunately, Judge Hampel in the Victorian Court rejected
ABC’s argument.14
The ECtHR were willing to view Peck’s action on a public streets as private—
breaking away from the traditional image of privacy as associated with the home.
Conversely, the existence of online communities and the continual use of smart
phones also undermines this link. Given that more of us communicate with the
world at large from within the home on a daily basis, it can hardly be experienced as
a separate private sphere for much of the time. This has extended a trend that started
with the telephone and has enabled the continuation of work conversations within
the home, as well as homeworking. It is also the case that confidants can be widely
spread over different geographical areas, which facilitates friendships and
discussions with people who have similar experiences. I will discuss this issue in
the next section.

Online Identity

It is clear that, in some cases (such as Night Jack, the police blogger who gave
detailed information about his time as a policeman, and the academic, who blogged
about her work as a prostitute undertaken to fund her Ph.D.), the consequences of
the online identity becoming linked with the bloggers’ actual names would disrupt
their everyday relationships. In these cases the bloggers’ concern about exposure
and its consequences is quite obvious. However, there can be different, more subtle,
issues at stake regarding online identities in virtual communities. An example is
provided by Bromseth and Sundén (2010). They describe a man who used a female
avatar and pretended to be a woman in Second Life so that he could join a

14
Doe v Australian Broadcasting Corporation & Ors [2007] VCC 281.

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community of lesbian radical feminists. As such, he successfully took part in


discussions of feminist theory. This may appear to be motivated by a desire to have
fun at the women’s expense. However, given the amount of effort necessary to take
part in feminist discussions this is unlikely. The man stated that his motivation was
based upon his reading of Habermas, despite the fact that deception hardly lends
itself to an ideal speech situation. In this context, even if not applicable in this case,
the situation raises issues around the idea of ‘‘passing’’ (a term derived from queer
theory in which someone who is gay pretends to be heterosexual, which is now
employed in broader contexts, including a man trying to ‘‘pass’’ as a woman). For
example, internet use by transsexuals in order to experiment with different ways of
presenting themselves as members of the ‘‘opposite sex’’ was recognised early in the
literature on online identity (1998). In this example, CMC facilitates existing desires
but it can also create desires, as the pervasiveness of CMC in everyday life allows
individuals to play with different identities. I will now consider how this is
potentially disruptive to the traditional image of the individual, outlined in the
introduction, and suggest that some aspects of feminist philosophy offer resources
for conceptualising online (and offline) identity.
There have been psychoanalytic arguments that have characterised identity as
‘‘fractured’’.15 However, I do not believe that the metaphor of a fractured identity is
a useful concept of identity generally nor does it even captures what is going on
when someone portrays him/herself in a variety of ways in different contexts,
whether or not this is facilitated by CMC.16 In contrast, some recent feminist
philosophy draws upon the idea that the ‘‘essence’’ of ‘‘who we are’’ is not fixed but
is always in a state of development; that it is carved out by what we do. This
includes both our repeated bodily habits and also different ways of relating to each
other (Battersby 1998; Gatens 1995). This approach does not start with the isolated
individual to ask how we relate to each other. Instead, it starts with a view of our
selves as always existing in relation to others and as gradually carving out our
identity from a position of relationality. The ‘‘self’’ and ‘‘other’’ emerge as separate
identities over time through complex relations. This gradual emergence of identity
is not envisaged in terms of becoming cut off or isolated from each other; nor is this
process viewed as ending at childhood. These philosophers have not applied their
framework to online identity. However, the model would suggest that online
experiences, which have become part of our routine of life, would contribute to the
establishment of our identities. There are many mundane activities (offline and
offline) that are not central to our identity, of course. Nevertheless, repeated
physical habits shape our bodies such that we develop (or fail to develop) physical
abilities that then contribute to ‘‘who we are’’ and how we are perceived by others,
even if they are not consciously included in our self-narrative. For example, my
dexterity at using my iphone text or in playing an online game will affect others’
perceptions of me. If that is something that I do often then this will show in the
15
For a discussion of the way in which ‘‘fractured identity is core to Lacanian psychoanalysis’’ see, for
example Elliott and Frosh (1995, 238).
16
There may be some exceptional cases of multiple personality, which are interestingly explored by
Daniel Dennett and Ian Hacking (Dennett and Humphrey 1989; Hacking 1991, 1992, 1994, 1995) but
they are not the subject of discussion here.

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physical adaptation to these skills. So, selfhood is not limited to our own stories or
self-definition and is always bodily. It also occurs in relation to others, in ways that
are now altering through CMC, as I will illustrate in the context of Fricker’s work
below. These models that stress relationality can be contrasted with alternative ways
of envisaging selfhood, such as the view that selfhood is merely an expression of
one totally coherent authentic fixed identity or of a ‘‘potential unfolding identity’’ or
that there are different fragments of our selfhood, which are given expression at
different times.
Having mentioned online deception, it should also be noted that there is
empirical research to support the view that deception online is no more usual than
deception offline (Baym 2010, 121). I will argue for the view that, even without
non-verbal communication, we are good at ‘‘reading between the lines’’ to glean
information from what people write online. As Slater (2002) argues, it may be that
concern regarding deception online is predicated upon a false dichotomy between
life on and offline. Slater’s position will be defended in the next section.
As we adapt to CMC, there is evidence that it produces a different experience of
communication that is unique to itself and is not simply to be understood as face to
face communication with the social cues removed. One potential advantage can be
informed by the work of feminist philosopher Fricker (2007), despite the fact that
she does not discuss CMC. I will outline her arguments and then consider the
relevant empirical work on CMC below.
Fricker details what she calls ‘‘epistemological injustice’’, which occurs when
some people are viewed as less credible than others either because they are viewed
as liars or as lacking knowledge or sound judgement. This tends to track people
throughout their lives because of their gender or race, for example, in both informal
and formal situations, such as giving evidence in court (Kennedy 1992). It can
produce a downward spiral. If a woman is not believed then she is unlikely to be
confident in her own judgement. This will have the effect of making her hesitant to
state her views, providing social cues that further undermine her creditability.
Worryingly, this downward spiral has the potential to affect her moral judgements,
which are dependent upon her epistemological judgement, i.e. an ability to interpret
events is necessary before moral judgement on such events can occur. This may also
undermine her confidence in her ability to judge for herself, temping her to abdicate
responsibility, which affects both epistemological and moral judgement.
It may be that the absence of obvious cues of gender in CMC is therefore helpful
for women, especially if their gender is completely unknown to the recipient so that
their statements and arguments are considered on merit. It may also be easier to
speak truth to power from a distance, without being aware of the recipient’s
reaction, and hence to be more assertive. Such an experience is therefore likely to
result in greater confidence that could feedback positively into offline encounters.
This is particularly likely if the cause of the problem is attributed to sexism rather
than to individual failings, which is a conclusion that can be prompted if a woman in
this position compares her experiences with those with similar stories. Such
comparisons also ameliorate Fricker’s second example of epistemological injustice,
which occurs when a group suffers from a particular problem that is not labelled or
recognised within the majority culture, such as sexual harassment prior to the

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labelling of the term in the 1960s. Any attempt to convey the discomfort of such
treatment was not likely to be understood by the majority and could also contribute
to undermining the credibility of the speaker.
To turn to the empirical evidence, Sproull and Kiesler (1986) analysed email
within a Fortune 500 organisation and found that email did not simply speed up
information flow but also prompted the exchange of information that would not
otherwise have been conveyed. Importantly, they attribute this to the effects of
fewer social cues as to status, which can increase uninhibited behaviour. This is
consistent with their finding that people preferred using email when communicating
with someone higher up the hierarchy. In addition, there is evidence that people
adapt to the use of email by producing different approaches to communication, for
example, by the use of the emoticon to take the sting out of a potentially aggressive
remark. Given the development of styles of communication that is specific to email,
it should not simply be viewed as an inferior substitute of ‘‘real communication’’
(Menchik and Tian 2008).
As I will discuss in the next section, we can unintentionally give away
information about ourselves when we write. I emphasise the written text in CMC
but there are other potential sources of information, such as: ID addresses, writing
style, use of references to own web pages and previously expressed comments and
the content of the interaction (Donath 1998). Similarly, Ramirez et al. (2002) point
to a number of ways in which CMC is used to obtain greater information about
someone, both outside of the conversational exchange (for example by the use of
search engines or requesting information from others) and also by eliciting greater
information in conversation (by either direct request or by inviting confidences by
sharing information about oneself, for example). I will now consider how Nagel
characterises changes in our attitude to privacy and consider its application to online
identity in Cocking (2008).

Changes in Our View of Privacy: Nagel

In his paper ‘‘Concealment and Exposure’’ Nagel (1998) rails against changes to
social manners. He is clearly pained by what he, as a liberal, views as a threat to
liberal values. I want to consider what is problematic with Nagel’s ‘‘old’’ view of
privacy, that he (rightly) believes is being eroded, by separating out two different
strands in his argument. Firstly, he can be read as discussing the practice of allowing
others to save face, which he describes as letting them enjoy privacy rather than
forcing them to speak about what is disturbing to them. This is viewed as good
manners necessary to facilitate social exchange, particularly in a culture in which
many basic beliefs differ. Secondly, Nagel blames feminists and activists against
racism for politicising what, he describe as, previously neutral language, for
example, the use of the male pronoun such as ‘‘chairman’’ that is replaced by the
gender neutral ‘‘chairperson’’. He argues that the effect has been to politicise a
cultural space. It was better, he argues, that some beliefs went unsaid when the
alternative merely creates conflict. As I will discuss below, Nagel’s argument in

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favour of concealment goes beyond being relevant to public and social events to
include intimate relationships.
I will now turn to Cocking’s (2008) view of online identity and his reliance upon
Nagel’s arguments about privacy. I will then return to discuss Nagel in the light of
Cockings’ analysis. As well as critiquing Nagel’s position, I also use my reading of
Nagel to question Cocking’s central argument. Cocking starts from the reasonable
claim that when we interact offline it is possible for us to note non-verbal cues,
which allow us to ascertain some emotions and characteristics that others may want
to keep hidden. He uses the example of a woman who is upset when she sees her ex
partner but tries to put on a brave face. When we are aware of her difficultly, we can
try to lighten the situation to allow her to save face. Cocking references Nagel as
supporting such concealment. Cocking values this failure to safeguard one’s
‘‘privacy’’ in offline interactions because it allows others to display good manners,
which can bond friendships. Further, he argues, friendships may be formed because
such slips may appear endearing and uses the example of a colleague who has ‘‘a
wandering eye’’ for women. He argues that these slips are therefore social goods
that could not occur on those CMC on which we cannot be seen, such as email,
because CMC allows us to have greater control over our self-presentation.
This last claim raises empirical issues that strike me as overstated, as mentioned
above. Whilst non-verbal cues are not available to us in email, we have plenty of
time to think about the text, particularly if we are interested in getting to know
someone. Much can be gleaned about someone by the phrases that they use without
thinking. Let me use a provocative example, relevant to the subject that is, in my
view, Nagel’s main concern: I could easily have told you that the author of Cocking
(2008) is male, irrespective of his name. His vulnerable friend is always female and
is viewed as sometimes needy in a way that is stereotyped. However, it reads as if
this is a genuine example. In contrast, the competitive colleague is given both a
male and female pronoun and not so well drawn. Needless to say, the colleague with
the wandering eye for women is given the male pronoun. I would have been willing
to bet that the author was not going to make him a lesbian at any point in the text. I
employ these examples to make a point (and not to criticise the author who was
making an effort to vary the pronoun, thereby signalling an awareness of feminist
issues). My focus upon pronouns and such deductions are illustrative of the line of
thought to which Nagel objects in his work on privacy: the concern that an
individual’s attitudes towards women and race become known in social life
depending upon whether s/he employs ‘‘politically correct’’ language. These
examples are also meant to illustrate that you do not need to be a paid up follower of
Jacques Derrida to recognise that, just as we give much away by our facial
expressions, we also give away more information than we may be aware when we
write. We do not have complete control of language. If it is, as Cocking claims, a
social good that we let someone save face, resulting from their slips offline, then I
do not believe that this opportunity is lost when all we see is the written word
online.
Cocking ignores the strand of Nagel’s argument in which Nagel worries that
language is no longer politically neutral and employs the other aspect of Nagel’s
text: that good manners involve keeping quiet when the mask slips in order to ease

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social interaction; not to ‘‘rock the boat’’ or raise disturbing truths in polite society.
When Nagel’s view of feminism is read alongside the aspect of his argument
discussed by Cocking, the question arises: which disconcerting truths are silenced
and who benefits from the silence?17
Nagel fails to recognise that what he characterises as ‘‘neutral’’ speech was
previously exclusionary and problematic for women and racial and other minorities.
At times, the constraints he describes are moving, such as his view that it would be
inappropriate to discuss pending old age—something with which he is clearly
concerned—because such a discussion may make others feel uncomfortable. In his
analysis, he gives us important insights into a culture and its view of privacy that, I
agree, we have lost (or, at least, are losing).
Nagel’s examples illustrate how social manners are linked with his understanding
of privacy. Many of the examples in his paper involve gender relations. In the first,
drawn from James’ (2009) The Golden Bowl, published in 1904, Nagel describes a
wife, who, on finding out about her husband’s affair, does not confront him with it
directly but is viewed as clever by only alluding to it. This image of women’s
dignified silence, in contrast with assertiveness, can be dated earlier than James. It is
strikingly reminiscent of the position of women in Rousseau’s (1987) novels,
written in 1761 and in Kant’s (2006) anthropology, written in 1798. In Kant’s view,
women are able to behave tactfully and delicately to make others feel comfortable,
although he is clear that this is not based upon reason (and hence the application of
the categorical imperative and is therefore not fully moral). They avoid doing wrong
because it would not be aesthetically beautiful. Needless to say, women needed to
tread carefully when they were economically dependent upon men and were not in a
suitably powerful position to risk greater honesty.
Similarly, in another of Nagel’s examples, he refers to a situation in which a man
is attracted to a prospective female candidate’s breasts. This second case feels less
dated because the feminist movement has highlighted workplace sexual harassment.
Whist expressly stating that he does not condone sexual harassment, Nagel’s
concern is that no good will be served by making such potential abuse of power
plain in conversation because no common ground could be reached. I disagree. The
flip side of this attitude is shown in the feminist literature of the time when ‘‘sexual
harassment’’ was first coined to deal with a problem that women felt but was not
discussed (Cornell 1995). It is an example of ‘‘epistemological injustice’’, outlined
above, and it is clear who wins and loses by such silence. As CMC has developed at
a time when women have been more able to discuss their ‘‘private’’ life, it further
facilitates such sharing amongst a larger geographical group.
To summarise, my argument is that Nagel’s discussion of privacy has (at least)
two strands: firstly, as Cocking employs it, there is the argument that we should not
point out when others reveal aspects of themselves and their emotions that they are
trying to disguise; that social interactions should be eased by tact. However, this
anodyne reading of Nagel ignores the second strand, which is Nagel’s central claim:
17
Foucault (1990) famously argues that ‘‘we other Victorians’’ have not kept quiet about sex and that our
discourse around it is productive of ‘‘who we are’’. However, his analysis of the confessional and ‘‘psy
professions’’, does not undermine Nagel’s sketch of manners and conception of privacy, which affords
insight into a way of life that is being lost.

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that the ‘‘neutral’’ space of social interaction has been eroded by both stroppy
feminists and critical race theorists, both of whom have objected to language that
that they find demeaning and have challenged its neutrality. From Nagel’s
perspective, this is problematic because it means that ‘‘we’’ now have to take care to
avoid being viewed as sexist or racist. For him, what was traditionally neutral
language now no longer exists. Social changes, he claims, have undermined liberal
‘‘neutrality’’ in public and private speech so that everyone’s beliefs are exposed to
scrutiny when they are better hidden.
Importantly, Nagel draws an analogy between the liberal state and liberal culture,
comparing the need for neutrality in cultural life with the neutrality of the liberal
state, which does not impose its version of the good upon citizens. I agree with
Nagel’s analogy because the supposed gender ‘‘neutrality’’ of traditional Western
culture (in which women were marginalised or demeaned) is directly analogous
(and related) to the ‘‘neutrality’’ of the liberal state that was (and is) reluctant to
interfere within the ‘‘privacy’’ of the home to deal with violence and abuses of
power. To remain ‘‘neutral’’, or silent, about injustice merely continues to facilitate
it.
As mentioned above, contra Cocking, language can let slip more than a writer is
aware, in just the same way as our physical expressions. Indeed, when this second
strand of Nagel’s argument is emphasised, it undermines Cocking’s main claim.
Nagel is concerned that it is now easier to identify someone’s beliefs (particularly
about gender and race) from the language that they use; language that reading (and
possibly re-reading) email will make plain.

Conclusion

By examining the courts’ recent judgements in privacy claims, which focus upon
particular situations in which harm may occur, and on Nagel’s detailed scenarios, I
have illustrated how different meanings of privacy have affected the way we live
and how we see ourselves. The courts have produced images of privacy that have
shifted from focusing upon the isolated individual, by, for example, emphasising the
harm that comes from interference with our relations with others when private
information is disclosed. Of course they do not express a detailed ontology in which
self and other emerge through their daily habits and relations with others (as in the
feminist philosophy discussed above) but they clearly view relationships as of
central importance to producing ‘‘who we are’’. This is compatible with the view
that relationships ‘‘come first’’ and that individuality develops out of our relations
with others. This is contrasted with the traditional image of the private individual,
outlined in my introduction and illustrated in detail by Nagel. In addition, the
ECtHR has undermined the link between privacy and the home by deciding that
what has taken place on a public street can still be private. Similarly, the emphasis
upon the individual in isolation from others is undermined by the decision that you
do not have to keep information to yourself alone for it to be classed as private.
Nagel’s work illustrates how the traditional form of privacy was lived out and
exemplifies the attitudes associated with it. He draws the divide between the

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individual and those with whom s/he is intimate, by emphasising what should be
concealed from our intimates. Nagel does recognise that,
Politeness is also a disadvantage when one party to a situation takes advantage
of the conventions of mutual restraint to make excessive claims whose
excessiveness he knows cannot be publicly pointed out. (Nagel 1998, 14)
This restraint also applies in the home, as Nagel’s example from The Golden Bowl
makes plain. He fails to see that those taking advantage were not randomly spread in
a community because of some character-failing but that relations were structured
such that silence and ‘‘neutrality’’ favoured those with power, allowing men and
women to live together without acknowledging that one party was not being treated
with respect.
Today, at the same time as women’s status has improved in the West, CMC has
developed, again affecting both privacy and our view of ourselves. Online
encounters extend the ability to disclose information that was previously viewed as
private. This can give rise to ‘‘revenge porn’’ but also to ‘‘consciousness raising’’
and the development of ways of relating that may undermine epistemological
injustice, as women’s judgements are not discounted as a result of their social cues,
for example. However, reference to the lack of online social cues should not be
overstated. We adapt to CMC as it continues to develop. As such, our online
relationships provide additional, different ways of carving out ‘‘who we are’’ from
face to face encounters. This is better envisaged as a continuing and unpredictable
process of carving out individuality rather than a presentation of a pre-existing,
underlying self.

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