Facebook’s stated mission is to “give people the power to share and make the world more open and connected.” Yet the company knows that the expectation of privacy—the ability to decide who can see your postings and who can’t—makes people willing to share private information in the first place. As Facebook put it in their Commitment to the Facebook Community: “everyone needs complete control over who they share with at all times.”
Yet, some are suggesting that Facebook ought to reject the concept of a right to privacy, as well as reject the idea that their board members have a right to be involved in important debates about where freedom of the press ends and a right to privacy begins.
That’s the crux of the argument being made by those encouraging Facebook to vote out Peter Thiel, the founder of PayPal and an early investor in Facebook, from their board of directors. Thiel has helped finance a lawsuit against Gawker Media, a news outlet that deals in celebrity gossip, for violating the privacy of a former pro wrestler by posting a surreptitiously made tape of him having sex. Alex Kantrowitz of Buzzfeed believes this disqualifies Thiel from involvement in Facebook: “Will Facebook, a company dependent on publishers for the content that fuels its News Feed, stand by a board member seeking the destruction of one of those very publishers?”
Facebook users ought to hope, however, that the company stands by Peter Thiel, who was not simply seeking to destroy “media companies that publish stories not to the liking of powerful billionaires.” Rather, the lawsuit against Gawker spoke to an important principle—the right of individuals, including those in the public eye, to a sphere of privacy. Indeed, as far back as the 1890s, legal scholars like Louis Brandeis were concerned about the media’s increasing intrusion into “the sacred precincts of private and domestic life.” Thus, for centuries, American tort law has recognized that the media can go too far in publishing intimate details about an individual (as opposed to matters of legitimate public concern). The Gawker lawsuit addresses those limits in the internet age and asks important questions regarding what constitutes journalism, and what topics are legitimately of public interest, and therefore deserving of extra protection from the courts.
One doesn’t have to agree with every aspect of the Gawker verdict to believe that the imbedded privacy issue was a legitimate issue for Thiel to help protect. The public could take note of the jaw-dropping $140 million in damages awarded by the jury and consider if such supersized damages are truly an act of justice, or if they have the impact of destroying, rather than punishing, parties found guilty. That’s a reason to support broader legal reform, including caps for damages. However, the amount awarded is entirely separate from Thiel’s involvement in this case, and from the underlying issue of the balance between freedom of the press and the right to privacy.
Some suggest that it’s unfair that billionaire Peter Thiel had the resources to finance this case against Gawker (especially since he had a personal history with the company which also unwantedly exposed aspects of his personal life) while the rest of us don’t have the capacity to get involved in such legal matters. Yet third parties commonly help finance litigation, particularly litigation that has broad implications for the legal system, and prominent nonprofit groups, such as the American Civil Liberties Union (ACLU) ensure that it isn’t just wealthy individuals who can help finance litigation, but regular individuals who can pool resources that are then used for a legal defense.
As Eugene Kontorovich, a professor at Northwestern University School of Law, wrote for the Washington Post, the case against Gawker was well-suited as a test case for a broader policy principle:
Gawker is institutionally committed to revealing the private lives of public people. The question of how far the privacy rights of celebrities go is a legitimate one, and Gawker’s anything-goes position is not without merit. But it is a legal and policy question. Thiel was in essence financing what he understood as public interest litigation on an issue of public concern.
Facebook’s CEO Mark Zuckerberg and the rest of the company leadership should welcome greater clarification from the courts on an issue that is so important to their network. And Facebook users should be concerned if the company is so committed to the perspective of content creators—even those like Gawker that focus on revealing the private lives of individuals by obtaining surreptitiously made tapes and failing to obtain the permission of the parties involved to make them public—that it cannot tolerate its board members even being involved in the exploration of the issue.
Facebook’s prominent board members undoubtedly are involved in a wide variety of causes and support a plethora of political views and ideologies. That’s how it should be. Kicking out a board member for taking up a meritorious invasion of privacy case and cause would suggest that Facebook really isn’t committed to ideological diversity or to the basic concept of privacy after all. If that’s the case, Facebook users might want to reconsider how comfortable they feel about sharing intimate details of their own lives – and their children’s – after all.