Joan is Awful – a Deep Dive into the Advancement of Technology

Disclaimer: This article is written by Taha Ragheb. Any views and opinions expressed in this article are those of the writers and do not necessarily reflect the views or positions of the team editor nor any entities they represent.

The latest season of Black Mirror, an anthology series looking into the dangers of advanced technology, recently touched upon cookies. Norton explains that ‘the purpose of the cookie is to help the website keep track of your visits and activity.’ These cookies are collated in a number of ways, and most worry about the use of microphones continuously listening from devices such as laptops and phones. All about Cookies explains that ‘it’s simply another means to target relevant advertisements to you, which in turn helps the advertiser stretch their clients’ dollars as far as they can by avoiding irrelevant ad targeting.’

In the first episode of the new Black Mirror season, titled ‘Joan is Awful’, the main character’s life is turned upside down when a popular streaming platform creates a series following her every move during the day, painting her in a bad light and casting judgement over her from friends and family. It is later explained that this is perfectly legal, as the terms of contract had been signed by the protagonist. But can such a scenario really be agreed to?

Right to privacy?

A clear argument in favour of the protagonist’s position is the right to privacy. There is not much persuasion needed to convince me that a show documenting her every step seems out of line. The UK formally recognises the right to respect for private and family life in the Human Rights Act 1998. Although this is a human right, it is not absolute, meaning it can be neglected if there is a competing human right. In this case the only possible competing right may be the freedom of expression. Campbell v MGN Ltd clarified the test as to whether information about a person could be published, stating that the information must be so private that the disclosure would be offensive to a person of ordinary sensibilities. In this case, information on Joan’s secret affair was enacted. There is no doubt that a person of ordinary sensibilities would find this offensive as it led to her friends, family, and partner distancing themselves from her.

Voidable Contract?

Although a company may use cookies, procured in a plethora of different ways, the Privacy and Electronic Communications Regulations 2003 sets out the way in which cookies should be used in the UK, building upon the EU Directive. This Regulation states that such information may only be stored if it is clear to the user what the purposes of storage are, and there is an opportunity to refuse access to that information. In this case, Joan may well have agreed to allow her conversations and private life to be recorded and stored for a show to be made from it. Rather surprisingly, cookies do not need to be gathered for the sole purpose of advertising, so long as its purpose is clear.

We are told that the cookies being used in this manner are part of the contract Joan agrees to win the streaming platform. Therefore, there is no legal basis for her to stop the show being made. However, on a contractual note, there may be room for Joan to argue that there is a voidable contract with the streaming platform due to illegality – more specifically, harassment by the streaming platform company. There may be an argument made under the Protection from Harassment Act 1997, sections 1 and 2A, if we take the company to be acting as a person, generally following company law practice under the Salomon Principle. Avoiding the complexities of the Act, generally, its aim is to prevent knowingly harassing or stalking another. Considering the show airs out Joan’s private life and goes so far as to label her ‘awful’ for her actions, there very may well be room to argue that the ‘monitoring … of the internet, email or any other form of electronic communication’ and ‘publishing [this] material’ is within the remit of the Act.

Recently, the court stated that ‘the law on illegality has evolved significantly in recent times so that it can no longer be said that a contract made in breach of a statutory prohibition is necessarily void.’ In other words, a contractual clause which is inconsistent with legislation may not ‘necessarily’ be unenforceable if there is greater harm caused by rending the contract void, and/ or the legislation does not intend to make an inconsistent contract void. In this case, there is no harm caused to other streaming platform users by making this clause defunct. In fact, there may be greater harm in allowing such actions to continue, as Joan’s life is turned upside down. Considering the Act’s purpose is in place ‘for protecting persons from harassment’, I propose that such a clause would fail on illegality.

Despite the legal discussion to be had here, it is illuminating to consider what proportion of our right to privacy is already being infringed, and how far we could expect it to diminish in the future.