Responsible Information Sharing Converging boundaries between private and public in privacy and copyright law

Abstract

Copyright Law and Privacy Law both grant individuals exclusive control over the dissemination of expression or personal information, respectively. A number of criteria emerged in the ‘new public’ jurisprudence of the CJEU based on Article 3 Directive 2001/29/EC (InfoSoc Directive), that determine how right holders can retain control over copyright-protected works after their first publication. The Court established that the scope of a public in copyright law depends, among other factors, on the subjective intention of the person who exposes a work to an audience. The case law suggests that several ‘publics’ coexist, and that the exposure of works to one of these ‘publics’, does not automatically justify exposure to other public spheres. The exposure of these works to other ‘publics’, still remains under the control of the right holder. The paper suggests that the notion of a “new public” can be instrumental in better understanding the delimitation of public and private space in EU privacy law. The authors propose a concept of privacy as controlled public exposure, modelled on the notion of a “new public” under Article 3 of the Information Society Directive, and inspired by recent jurisprudence of the ECtHR on Article 8 ECHR, which protects the right to respect for private life. This, the authors argue, leads to an expansion of private spheres in public life.