[author]QIU Yaokun

[content]

Privacy as a Duty: The Challenges and Responses in the Digital Age

QIU Yaokun

Koguan School of Law, Shanghai Jiao Tong University

Abstract：In addition to privacy as a right, there is also privacy as a duty, which includes space privacy duties related to body taboos, and information privacy duties related to ethical content moderation.Privacy as a duty can not only maintain social order and protect specific groups by restricting individual freedom, but also protect individual freedom and promote social stability and development by distinguishing public and private duties, representing the balance between order and freedom, public and private relations. However, the rapid flow of information and data and the increasing openness of social culture in the digital age have posed challenges to it. They undermined the aforementioned balance, and caused it to fluctuate unstably between excessive regulation and excessive permission. In this regard, we should, on the one hand, restrict public power from the perspective of substance and procedure and protect personal privacy and freedom. On the other hand, we should hold the bottom line of law and norms and protect vulnerable groups such as women and children. Besides, we should use social norms to coordinate legal governance, distinguishing different scenarios and taking different measures, so as to promote the diversified and healthy development of society.

Keyword：privacy; privacy duty; digital age; body taboo; content moderation;

1.Introduction: Don't say anything unless it's polite, don't move unless it's polite

The issue of privacy and its related personal information protection has always been a hot issue in digital law research. Academics have conducted comprehensive and in-depth discussions on the relationship between privacy and personal information, the scope and mode of privacy protection, the theory of reasonable expectation of privacy and scenarios, the protection of privacy in specific issues, the protection of privacy by social norms, and the balance between privacy and other rights and interests, with particular emphasis on the impact of information technology on privacy in the digital era and its response. Privacy and personal information have become indispensable raw materials for digital economy and digital governance, concerning the limits of individual freedom in the digital era. Therefore, how to reasonably use and protect them, and how to redraw the public and private spheres in the digital era, will be an important issue of long-term concern for the industry and academia.

However, the current privacy research mainly focuses on privacy as a right, while relatively neglecting privacy as a duty. Privacy as a duty is not meant to be the opposite of the right to privacy, i.e., the duty to protect one's right to privacy that requires others to take on the obligation of privacy, for example, the common obligation to protect one's own knowledge of another's secrets by legal or social norms. There is nothing new about this duty being subordinate to the right to privacy. Privacy as a duty means that an individual must keep something about himself or herself, but not about others, hidden from public view, or face legal or social norms, e.g., not to intentionally expose one's body in a public place, not to disseminate obscene material, and so on. In other words, for the privacy as a duty discussed in this paper, the subject of the privacy duty is consistent with the subject of the privacy space or information, i.e., if privacy as a right requires "don't see, don't hear, don't do, don't do, don't see, don't do, don't hear," then privacy as a duty requires "don't speak, don't move, don't do, don't say, don't do, don't do" in contrast. If privacy as a right requires "do not see, do not hear", then privacy as a duty requires the opposite: "do not speak, do not move".

Admittedly, the physical taboos or content moderation involved in the preceding examples are not new and have long been regulated by relevant laws or social norms, so why seemingly forcefully attach the concept of privacy to them? It is because a privacy understanding of taboos and censorship is conducive to balancing order and freedom, and is more conducive to the protection of individual freedoms. More specifically, privacy as a duty is different from the general duty to obey the law, in that the former relegates certain behaviours to the private sphere and prohibits only publicity, whereas the latter implies that the behaviours in question are prohibited altogether, regardless of whether they are in the public or the private sphere, and that even the more hidden the more they need to be prohibited. In this regard, the related regime of freedom of expression also suffers from a certain degree of generalisation: it does not sufficiently clarify whether what is prohibited in the public sphere may be expressed in the private sphere, and it does not answer the question of whether the actual existence of the relevant content in the private sphere is due primarily to the fact that external powers do not have de facto access to, and interference with, the private sphere, that is, whether it is due primarily to the fact that external powers cannot It does not answer the question of whether the actual existence of the content in the private sphere is mainly due to the factual inaccessibility and interference of the external power in the private sphere, i.e. "cannot", or mainly due to the normative sanctioning of its existence in the private sphere by the external power, i.e. "does not".

Thus, privacy as a duty, like privacy as a right in general, is an expression of the public-private boundary. By fulfilling the privacy duty to refrain from engaging in behaviour in the public sphere, an individual retains the freedom to engage in such behaviour in the private sphere, which, like the right to privacy, provides a measure of protection for private freedoms. As will be argued later, privacy as a right and privacy as a duty overlap in terms of the objects involved: the privacy of certain spaces, activities, parts, and information is both a right and a duty of the individual, and they are two sides of the same coin. The rapid flow of information, the increasing openness of culture, and the blurring of public and private boundaries in the digital age have also challenged privacy as a duty, shaking its feasibility, legitimacy, and necessity, just as they have challenged the right to privacy. Therefore, it is appropriate to use privacy as a duty to refer to the relevant taboos and censorship, which can expand the boundaries and enrich the connotation of privacy research while invoking the resources of privacy research.

In this paper, we will study the issue of privacy as a duty, discuss its theoretical connotation and institutional purpose, the challenges and responses in the digital era, and then discuss the public-private boundary in the digital era, as well as try to expand the legal research on privacy with the sociology of law approach. This sociology of law approach also means that the discussion of privacy as a duty in this paper will integrate law and social norms, with special attention to the practical effects of law in society and its interaction with social norms.

2. Analysing Privacy as a Duty

Legal theories on the right to privacy usually divide privacy into two categories: spatial privacy and information privacy. The former refers to the private space, private activities, and private parts of one's private life that one would not want others to know, while the latter refers to private information that one would not want others to know. Admittedly, the boundary between the two is not clear-cut, for example, spatial privacy and information privacy have a certain degree of isomorphism in the digital cyberspace. However, this distinction is also instructive for this article's study of privacy as a duty: privacy duties can also be divided into space privacy duties and information privacy duties, which correspond to what are commonly known as bodily taboos and moral content moderation, respectively. Therefore, this part of the paper takes this distinction as the starting point for analysing the theoretical content of privacy as a duty.

2.1 Space Privacy Duties: Bodily Taboos

Space privacy duties imply that certain spaces, activities and parts of the body must remain private and must not be known, as opposed to the right to privacy, which requires that they not be known. This spatially enforced privacy is usually associated with bodily taboos and extends from proximity to specific parts of the body to specific activities and spaces.

Body taboos imply, first and foremost, that sexually related parts must not be displayed in public, as otherwise one may be liable for the tort of sexual harassment under Article 1010 of the Civil Code of the People's Republic of China (hereinafter referred to as the "Civil Code"), or for the "indecent assault of another person, or intentional nudity in a public place," as stated in the first paragraph of Article 44 of the Law of the People's Republic of China on Punishment for Public Security Administration (hereinafter referred to as the "Law on Punishment for Public Security Administration"). or intentionally exposes his body in a public place under aggravating circumstances, shall be sentenced to detention of not less than five days but not more than ten days." Even Article 237 (1) and (2) of the Criminal Law of the People's Republic of China (hereinafter referred to as the "Criminal Law") states: "Anyone who, by force, coercion or other means, forcibly indecently assaults another person or insults a woman shall be sentenced to fixed-term imprisonment of not more than five years or detention. If a person commits the offence in the preceding paragraph in a crowd or in public in a public place, or if there are other aggravating circumstances, he or she shall be sentenced to fixed-term imprisonment of five years or more."

The more directly the relevant part is related to sex, the stricter the legal and social norms against displaying it. Only in certain specific scenarios is the public display of these parts in a manner unrelated to sex permitted by law and social norms. Even if the aforementioned parts are not suitable for display in most public places, even if they are covered by intimate clothing, they are still considered to be excessively revealing and sexually explicit, and thus do not meet the legal and normative requirements of the particular scenario. Thus, sexual connotations form an important basis for space privacy duties in relation to body parts.

While it is true that certain body part privacy duties are not necessarily, or even exclusively, related to sexuality, but are merely a result of the norms of decency in a civilised society, for example, not to bare one's shoulders, certain activities for which spatial privacy duties are imposed are often directly related to sexuality. The aforementioned lewd display of body parts is one such activity. More direct sexual behaviour must, of course, be kept away from public spaces or public crowds, and cannot be freely displayed to third parties.

Specific spaces, which are subject to the duty of privacy, are also closely related to the aforementioned private parts and activities, such as single changing rooms, toilet cubicles, hotel rooms, houses, etc. However, the privacy of particular spaces is often closely related to the development of social spaces and social attitudes: some changing rooms and toilets in the past and even today do not have single compartments, and it is not possible to impose spatial privacy duties on individuals when they use them, and people do not usually have such attitudes. However, indecent and sexual behaviour is still prohibited, and when such behaviour occurs, the space cannot be made public.

In sum, the duty of privacy in relation to certain spaces, activities and places is closely related to sexuality, and the closer the relationship, the more demanding the requirement. Whether or not there is a breach of space privacy duties depends on the specific context and behaviour.

2.2 Information privacy duties: ethical content moderation

Information privacy duties mean that certain information must be kept private and must not be made known to others. This mandatory privacy of information is usually associated with content moderation, but not all content moderation creates information privacy duties. Certain content, whether in the public or private domain, is so harmful to the national interest and the public interest of society that it must be prohibited, as opposed to information privacy duties that require different requirements for the public and private domains.

Moral content moderation creates information privacy duties, often centred on the control of sexuality, and is an informational extension of the space privacy duties described above, but is less demanding because it is less expressive and less influential. The more directly related the content is to sex, the stricter the prohibition, for example, Article 367 of the Criminal Law states: "Obscene articles referred to in this Law refer to obscene books, films, video tapes, audio tapes, pictures, and other obscene articles depicting sexual acts in concrete terms, or explicitly promoting pornography. Scientific works on human physiology and medical knowledge are not obscene. Literary and artistic works of artistic value that contain pornographic content are not considered obscene." Obscene articles are prohibited and may not be produced or trafficked for profit, or disseminated regardless of whether they are for profit or not, or they may be in violation of the Public Security Administration Punishment Law or even the Criminal Law.

However, information content can take various forms, not limited to images or videos, but also includes text and audio, for which ethical content moderation is also an important part of information privacy duties, although the requirements are less stringent, such as the use of uncivilised language. However, the information privacy duties in oral or written expression have become less stringent due to the prevalence of certain uncivilised language, even tone of voice, and the ease with which content moderation of text can be circumvented. Also, because text and audio are less comprehensive, less expressive and less influential than images and videos, and even less so than new types of content, such as short videos or even in-depth fake videos, which are increasingly dominating the production and consumption of content, the information privacy duties for text and audio are also less demanding than those for images and videos.

In summary, some information privacy duties are also related to sex, but due to the weaker expressive power and influence, the requirements for information privacy duties are not as high as those for space privacy duties, and the requirements for text and audio are not as high as those for images and videos.

2.3 Relationship between privacy duties and privacy rights

As can be seen above, there is a practical overlap between privacy as a duty and privacy as a right. Sexually relevant parts, behaviours or spaces, and the content of information that expresses the aforementioned objects not only entail privacy duties, but also privacy rights. The nature of the right implies that on the one hand, others may not infringe upon it, i.e., they may not film or spy on private parts, film, spy on, eavesdrop on, or disclose private activities, enter, film, or spy on private spaces, or handle private information, etc., and on the other hand, it implies that they may choose to publicly display the aforementioned parts, activities, spaces, and information to specific others without violating the duty of privacy. This reflects the consistency of the right and duty of privacy in the aforementioned space and information, and reaffirms the conceptual appropriateness of calling the relevant bodily taboos and content moderation of a moral nature a duty of privacy.

But privacy as a duty is ultimately different from privacy as a right, not only because of the different nature of duties and rights, of coercion and choice, but also because the objects covered by the two do not overlap entirely. On the one hand, certain spaces or information cannot be shown to others by choice, but can only be kept private by compulsion, such as behaviours and information directly related to sexuality. Even if they can be displayed, the duty of privacy implies that the scope of the choice of display must not be too wide and must not become a general public sphere, otherwise it would still be a violation of the law. On the other hand, certain spaces or information that can be chosen to be displayed to others without being forced to remain private, such as parts, activities, spaces, and information not related to sex, may still be in the private sphere and may not be infringed upon by others at will. While it is true that in reality objects of higher value, vulnerability and consequence are often the overlapping parts described in the previous paragraph, the normative scope of protection of the right to privacy remains broader than that.

The relationship between the two can be further analysed by invoking the question-and-say framework of access to and dissemination of information proposed by Adam M. Samaha and Lior Jacob Strahilevitz: the question concerns the ability of others to access information from the outside-in, i.e., privacy as a right, while the say concerns the ability of one's self to disseminate information from the inside-out, i.e., privacy as a duty. In both dimensions, there are three options - cannot, can and must - indicating the scope of the relevant rights and duties, thus forming the nine-point grid shown below:

Cannot say Can say Musk ask

Cannot ask e.g. sex-related parts,  activities,space,information e.g. non-sexual parts，activities,space,information e.g. fidelity to a partner

Can ask e.g. confidentiality agreements Required by social norms in many cases, required by law in most cases e.g. knowledge of health conditions

Musk ask e.g. journalists interviewing politicians e.g. friend's injury e.g. mandatory disclosure

Table 1.  Legal and social normative framework on access to and dissemination of information

It follows that sex-related parts, activities, spaces, and information, the overlap between privacy as a duty and privacy as a right, cannot be asked or told, while non-sex-related parts, activities, spaces, and information, the parts exclusively subject to the right to privacy, cannot be asked but can be told. This information flow framework reveals more deeply the homology of privacy as a duty and privacy as a right, and the appropriateness of referring to bodily taboos and moral content moderation in terms of privacy duties.

In sum, privacy as a duty and privacy as a right have overlapping but not identical scopes of regulation, and they share a common boundary between the public and private spheres but still serve different institutional purposes. So what is this institutional purpose? Why impose a duty of privacy? How does it differentiate itself from the general duty to comply with the law and from the right to privacy? These questions are the focus of the next section.

3. The purpose of privacy as a duty

The privacy regime exists to divide the public and private spheres, so that what is public is public and regulated, and what is private is private and protected. In the case of privacy as a right, the purpose of this division is to prevent public power from encroaching on the private sphere, the rights of others from interfering with their own freedoms, and to resist the inward movement of power (profit) from the outside in. For privacy as a duty, the distinction between public and private is also valid. However, privacy as a duty is, on the one hand, and in the first place, to protect the social order and specific groups of people by limiting the role of inward and outward power so that the private sphere does not affect the public sphere, and the freedom of others does not interfere with the rights of others, thus distinguishing it from the right to privacy. On the other hand, privacy as a duty also allows the freedom of speech and action in the private sphere to be unrestricted, and the scope of action of external power (profit) to keep its boundaries, thus also distinguishing it from the general duty of law-abidingness, which does not distinguish between public and private.

3.1 Restriction of Individual Freedom, Maintenance of Social Order, and Protection of Specific Groups

Privacy as a duty is first and foremost a restriction of personal freedom, requiring some private space and private information not to be displayed in the public sphere, with the direct aim of avoiding offence to others and protecting simple public feelings. When we move in public space, we do not expect to see the private parts, activities, spaces, and content of information that expresses the aforementioned objects of others. If someone insists on sharing this content, we feel surprised, confused, disgusted and even fearful, and surrounded by these negative emotions, we are unable to continue the activities we would otherwise want to engage in in this space. This simple public emotion deserves protection in itself, and the direct impact of the stability of the public emotion is the normal stability of everyday life and social interaction, again supporting the creation of a duty of privacy.

But why are others offended by this, and what are the underlying reasons behind psychosocial reactions? In order to understand these questions, it is necessary to explore the deep-seated function of privacy as duty in the maintenance of social order: since sex is both necessary for the continuation of the social group and potentially destructive of the social order. Therefore, privacy as duty controls it, restricts it to the private sphere, and allows it to be unleashed in a measured way, thus achieving the fundamental aim of maintaining social order. In the traditional society of acquaintances, sexual desire is regarded as order-destroying and socially harmful, so the traditional ethics advocates the control of sex so as to maintain the order and stability of the society of acquaintances. With the continuous development of the society, the control of sexuality by the duty of privacy shows a trend of first tightening and then loosening: when the society becomes flatter, the scope of application of the duty of privacy expands and the level of enforcement increases. As society becomes more liberal, the normative content of the duty of privacy shrinks to become a right to privacy, or even a right that ceases to be private and remains only a minimal defence of the social order.

More specifically, the preservation of social order by privacy as a duty is also reflected in the protection of women and children as a specific group. Since women and children are vulnerable to sexual offences committed in violation of the duty of privacy, the relevant bodily taboos and censorship are particularly protective of them and help to prevent them from being harmed. In particular, the protection of women and children constitutes a common institutional purpose of privacy duties in any contemporary society, despite the differences in privacy duties in different societies.

3.2 Protecting Individual Freedom, Maintaining Social Stability and Promoting Social Development

While privacy as a duty restricts individual freedom, it also serves as a kind of guardian of individual freedom because the space or information concerned is not completely prohibited, but only prohibited from being disclosed, as opposed to the general law-abiding duty of omission that is required of both public and private individuals, and the private sphere thus becomes a place where individuals are free to move about. Thus, privacy as a duty, like privacy as a right, preserves a certain amount of space for the individual's freedom of speech and action.

The guarding of individual freedom by privacy as a duty is not only conducive to the deep stability of society, but also to its continued development. As far as social stability is concerned, due to the tension between social governance and individual freedom, even efficient and normative norm enforcement that satisfies transparency of process and fairness of outcome is in conflict with individual freedom and may trigger confrontation, so if the relevant bodily taboos and moral content moderation do not leave the necessary space for individual freedom to be stretched out but instead comprehensively demand compliance with the law and rules regardless of public and private, then individual responses may turn into tit-for-tat backlashes. Therefore, privacy as a duty to divide public and private, and to guard freedom, is conducive to the maintenance of deep social stability.

In terms of social development, the duty of privacy not only perpetuates group longevity in a concrete sense through the reasonable release of sexual desire, but also supports social development in an abstract sense by promoting reform and innovation. Sexual desire cannot and should not be eliminated, otherwise the human group will not be able to continue, but uncontrolled sexual desire may also disrupt the social order and hinder the development of the group, so privacy as a duty has the social function of rationally controlling sexual desire to maximise the continuation of the group and minimise the disruptive effect. The preservation of this freedom also means that reforms and innovations in the private sphere do not have to worry about violating the law, thus fostering new social growth points or even disruptive innovations. This effect is particularly evident for information content, which is less obligatory and has a greater potential to push boundaries, potentially creating greater social value through the creative freedom it enjoys. Thus, guarding individual freedom with privacy as a duty can contribute to social development in both a concrete and an abstract sense.

In conclusion, the maintenance of social order, the protection of specific groups, and the safeguarding of individual freedom constitute the purpose of the institution of privacy as a duty, which is a defence of the necessity and legitimacy of the institution. However, the changes in the digital age to privacy and the public-private relationship behind it have also affected privacy as a duty, and its legitimacy, necessity, and even feasibility have been shaken.

4. Challenges to privacy duties in the digital age

The privacy regime has been significantly challenged in the digital age, as digital technologies such as the Internet have greatly reduced the cost of information dissemination, making it easier to intrude into private spaces and to access private information, and the boundaries of the private sphere as opposed to the public sphere have been constantly receding, both in terms of the right to privacy and in terms of the duty to privacy. However, the practical pressures of maintaining social order and protecting specific groups remain, so the ultimate development of privacy duties may result in some behaviours being prohibited altogether, privacy duties being transformed into general law-abiding duties, and individual freedoms being sacrificed. On the other hand, the high speed of information and data flow caused by digital technology, and the normative consequence of the increasing openness of social culture, have also impacted on privacy as a duty: many spaces and information that used to be mandatorily private continue to be required to be made public, and have been transformed into a right to privacy or even eliminated altogether, thus conflicting with the former institutional trend. As privacy as a duty oscillates between the extremes of over-regulation and over-indulgence, privacy and the individual freedoms it represents are in a precarious state in the digital age.

4.1 High-speed flow of information and data and infringement of the private sphere

The high speed of information and data flows created by digital technologies makes the private sphere vulnerable to intrusion by others, challenging the viability of privacy duties, as even normatively enforced secrecy may in fact compel disclosure. In terms of space privacy duties, the widespread use of technologies such as infrared cameras, long-distance cameras, and miniature cameras has made it possible for private areas, activities, and spaces that were previously protected by external structures such as clothing, walls, fences, or long distances, to be viewed in plain sight, and in reality, privacy violations are commonplace. In terms of information privacy duties, not only has the original architectural protection been rendered ineffective by technological developments such as scanning, but advances in communication technology have also changed the structure of information dissemination, thereby increasing the channels and nodes for information leakage. Thus, the invasion of privacy by digital technologies is a problem for both privacy rights and privacy obligations, but for privacy as a duty, the invasion reduces the expectancy of fulfilment of the duty, and perhaps alters the duty itself, so that spaces or information that would otherwise be mandatorily private are no longer subject to the duty.

Admittedly, the fact that privacy continues to be violated on the physical level does not mean that the law has to go along with it on the physical level. As long as the private sphere and individual freedoms remain worthy of protection, it is digital technologies, not privacy regimes, that should be limited. For privacy as a right, the changes brought about by digital technology do not amount to the extinction of the right to privacy, but rather require the updating of legal rules to limit the overuse of the former technology, so as to continue to protect the individual's privacy under the new architectural premise. Similarly, privacy as a duty should be updated rather than abolished under the new technological conditions: on the one hand, the rules relating to the right to privacy should be used to counteract excessive infringement by external powers, on the other hand, the level of requirements of the duty to privacy should be adapted or appropriately lowered in accordance with the institutional needs of a given society, and a certain degree of institutional tolerance should be maintained for breaches of the duty caused by external factors. Therefore, privacy as a duty should still exist, and only needs to be adjusted in the new public-private relationship under the conditions of digital technology.

More importantly, the real pressures to maintain social order and protect specific groups have not been eliminated, and if privacy as a duty is still unable to achieve this institutional purpose under the new technological conditions after adjustment, a new system will take its place, with the end result perhaps that some behaviours will be prohibited altogether without regard to public or private, and the duty of privacy will be transformed into a general duty of law-abidingness, with the sacrifice of individual freedoms. For space privacy duties, it may be difficult to devise stricter physical taboos or spatial restrictions. However, for information privacy duties, which are less demanding than space privacy duties, ethical content moderation that distinguishes between public and private is possible in the context of the weakening of privacy and the easier detection of violations of the law brought about by digital technology, in the direction of a public-private neutrality that would further restrict individual freedoms.

Although this imagery seems less realistic, as current digital technologies have not yet reached such a point in their development, and there are countervailing forces of privacy protection competing with them, this development is entirely possible. As the boundaries of the private sphere continue to recede as a result of digital technology, the scope of free movement once enjoyed by individuals continues to shrink, and the role of taboos and censorship continues to expand to the extent that individuals are no longer able to enjoy the normatively broader freedom of speech and action in the private sphere through the assumption of privacy duties.

Thus, in the digital age of high-speed information and data circulation, the delicate balance between order and freedom that privacy as a duty is intended to maintain is no longer sustainable, the purpose of maintaining order takes precedence over the protection of freedom, the boundaries of the public sphere are expanding into the private sphere, bodily taboos and content moderation are becoming more and more common, regardless of public or private, supported by digital technology, and personal privacy and the individual freedom that it represents are receding. The privacy of the individual and the individual freedoms he or she represents are increasingly being eroded.

4.2 Increasing social culture openness and the challenge of enforced privacy

While the rapid flow of information and data is ultimately leading to an increase in privacy duties and a restriction of individual freedoms on a de facto level, this technological development is also having an impact on the normative level of social culture, and is the opposite of the previous trend: if privacy cannot be enforced, why not move towards openness across the board? In terms of space privacy duties, certain body parts, activities and spaces that are not so closely associated with sex are demanding disclosure. In terms of information privacy duties, the content of information displaying spatial privacy is increasingly permissible, if not regulated, on the basis of moral considerations, above and beyond the need to protect children from access and harm. Thus, the high speed and great abundance of information and data, and the resulting impossibility of enforcing privacy, may not only reinforce the duty of privacy, but may, on the contrary, lead to a more liberal and open social culture.

As a result, the legitimacy and necessity of privacy as a duty is also questioned. Since the scope of the privacy regime depends on the social norms in a given context, when the social culture becomes more liberal and open, and people demand the removal of restrictions and the public display of private parts, activities, spaces, and information, the continued imposition of mandatory privacy is not justified. The institutional necessity of the duty of privacy, which is no longer justified and feasible, is naturally lost. People no longer need the duty of privacy to protect individual freedom, because individual freedom has been greatly expanded; also no longer need this system to maintain social order, because the society has been able to withstand the impact of the cancellation of the duty of privacy, and only the institutional need to protect a specific group of people still exists. Therefore, the reasonable expectation of privacy and the requirements of the scenario in modern society point to the decline of privacy as a duty.

The future of privacy as a duty could be either a transformation into a right to privacy or the complete elimination of privacy regimes in related areas. Transformation into a right to privacy means that an individual may choose to display an object that he or she was obliged to keep private to a wider public space, but the government or others are still prohibited from intruding on that object. The complete elimination of privacy in the relevant domain means that individuals do not have privacy duties or rights, and the government and others are free to enter the relevant space or access the relevant information.

While the demise of privacy may not be realistic, the trend is real. The lowering of the cost of information dissemination has made it easier for us to display and express ourselves, as well as broadening our horizons and our ability to pursue fuller self-realisation through cultural exchange and comparison.

Thus, in the digital age, where social culture is becoming more open, privacy as a duty is no longer justified or necessary, and may develop in a more laissez-faire direction, either as a right to privacy, or as a complete extinction of privacy. Different societies may develop at different speeds and in different details, but the general direction is basically the same.

4.3 Continuing order/freedom tensions and the precarious state of privacy

Given the extremes of over-regulation and over-permissiveness of privacy as a duty, where does the system go from here? The answer may depend on a given society's self-orientation on the spectrum of order and freedom, and more specifically on whether the institutional need to maintain social order and protect specific groups outweighs the need to protect individual freedom. If the former outweighs the latter, then the rapid flow of information and data in the digital age will lead to the strengthening of the duty of privacy, or even the replacement of the duty of privacy by the duty of law-abidingness, regardless of whether it is public or private. If the latter outweighs the former, then the technological reality of zero privacy will lead to a more liberal and open social culture.

However, this position is not stable in reality; there may be different positioning choices at different times, and competition between different orientations at the same time, so privacy is in an unstable state of oscillation between the two poles. While a relatively regulated society may move towards relative freedom as it continues to develop, a relatively free society may also move towards relative regulation because of the difficulty of controlling particular issues at particular times. The increasing pluralism of contemporary societies also means that different values and institutions coexist, oppose, and compete with each other, and privacy is no exception to this rule, even more so when it comes to public-private boundaries. As a result, the relationship between order and freedom in the digital age continues to be tense and privacy is in a precarious state.

5. Maintenance of privacy duties in the digital age

Privacy as a duty should still exist in order to balance the relationship between order and freedom, to maintain social order, to protect vulnerable groups and to safeguard individual freedom. Therefore, it is necessary to start from the two aspects of over-regulation and over-permissiveness to mitigate their extreme trends. In terms of the risk of over-regulation, public power should be limited to protect individual privacy, so as to prevent the duty of privacy from being transformed into a general law-abiding duty that does not distinguish between public and private; in terms of the risk of over-permissiveness, the legal bottom line should be maintained to protect the disadvantaged groups, so as to prevent the duty of privacy from being transformed into the right of privacy, or even disappearing. Due to the inevitably limited influence of law and the pluralistic development of social culture, the use of social norms to synergize legal governance and the differentiation of different scenarios to take different measures are equally applicable in upholding privacy duties, which is conducive to the continuous dialogue and exchange between the privacy legal system and privacy social norms.

5.1 Limiting Public Power to Protect Individual Privacy

In order to prevent privacy duties from moving towards over-regulation, excessive intrusion of public power into the private sphere should be limited and individual privacy protection should be strengthened accordingly. To this end, whether public power enters, photographs, spies on, or eavesdrops on private spaces, activities and parts, or handles private information, although it is necessary for the performance of legal duties or legal obligations without the need to obtain consent, it should still comply with the principle of proportionality in substance, adopt appropriate means, control the size of the infringement, and ensure that the means are proportional to the ends, and fulfil procedural justice in form, by In terms of form, it should fulfil procedural justice by preparing all legal documents, providing necessary notification, ensuring fairness and impartiality, and paying special attention to limiting undue intrusion into personal privacy by emerging private powers such as platforms.

In terms of adhering to the principle of proportionality, firstly, the invasion of privacy by public powers should be an appropriate means of fulfilling a legal duty or a legal obligation. For example, requiring citizens to strip-search should be premised on the premise that technical means have detected suspicious items that may endanger national security or public safety but still cannot be fully identified, and should not be required as an invasion of privacy merely for the purpose of general order maintenance or security checks. Secondly, the invasion of privacy by public power should be chosen in a way that minimises the infringement and reduces the damage to individual privacy as much as possible. For example, after discovering a suspicious object by technical means, citizens should first be asked to voluntarily present it and undergo a new technical inspection, rather than being directly asked or even forced to undress. Finally, the degree of invasion of privacy by public authority should be determined by the seriousness of the problem involved. For example, in order to prevent a tangible evidence-based impairment of national security, the most invasive law enforcement approach to individual privacy may be taken, but if public security alone is compromised, the appropriate approach to privacy invasion cannot be determined by analogy with national security issues. Thus, the requirements of appropriateness of means, minimisation of intrusion, and proportionality of means-ends can ensure that the intrusion of public power into privacy meets the standards of substantive justice.

As far as the fulfilment of procedural justice is concerned, first of all, the public power should have the necessary legal instruments in place, depending on the seriousness of the invasion of privacy, and should be subject to the constraints and balances of other powers in the process. For example, access to the contents of account storage or communication exchanges, as compared with access to basic user records such as name, age of the Internet user, credit card information, e-mail address, and recently logged in/out IP address, obviously requires corresponding instruments of higher legal rank and more stringent examination procedures. Secondly, although it is not necessary to obtain the consent of the individual for the invasion of privacy by public authority for the purpose of law enforcement, the necessary notification should still be made, unless the notification will hinder the realisation of the purpose of law enforcement, e.g. the notification may cause suspects to abscond, the notification cannot be made to the individual in time for the purpose of protecting the life, health and property safety of the natural person in case of emergency or the notification is inappropriate for the issue that involves the interests of the national security and other interests that are too significant. Finally, the invasion of privacy by public power should ensure fairness and justice, and no unreasonable differential treatment can be applied, except for some favouritism for the protection of vulnerable groups. For example, the invasion of privacy cannot be gender discriminatory, cannot be based on profiling, etc., and the differentiation must be based on justifiable reasons. Therefore, the availability of documents, necessary notification, fairness and impartiality can ensure that the invasion of privacy by public authority meets the standards of formal justice.

It is worth noting that emerging private powers, such as online platforms, also have a significant impact on individual privacy and should be subject to more stringent public law constraints by updating legal doctrines. Under the framework of public-private co-operation governance, platforms are contractors of governmental governance, supplementing or even replacing the social governance that the government cannot monopolise due to its limitations in information, knowledge, means, resources and status, etc. Moreover, due to its exercise of quasi-legislative, quasi-executive and quasi-judicial powers, its private power has a quasi-public nature, but there is a risk of abuse and infringement of individual rights, and the traditional private law has limited regulation on it, so it should be reasonably set up the responsibility of platforms through the aforementioned public law doctrine, which is also more strict. Therefore, on the basis of the reasonable setting of the platform's responsibility, it should be subjectively restrained through the aforementioned public law norms of substantive justice and procedural justice.

5.2 Holding the Line and Protecting Vulnerable Groups

In order to prevent privacy duties from becoming overly permissive, it is important to maintain a legal floor on behavioural requirements and to protect vulnerable groups in society, such as women and children. In terms of legal boundaries, the necessary physical taboos and moral content moderation should be upheld, and behaviours that explicitly violate the relevant laws should be discouraged or punished. In terms of space privacy duties, the more directly related to sexuality the parts, behaviours and spaces are, the higher the requirement of enforced privacy should remain. In terms of information privacy duties, the content of information directly related to sex should be subject to stricter scrutiny than the content of information displaying other parts of the body, especially when the form of the information leads to more expressive and influential content, in order to control the negative externalities of the content of the information concerned, and the damage done to the national interest and the public interest of society. Thus, the more intimate spaces, activities, areas and information related to sexuality are subject to stronger legal constraints, the more the taboo and moral content moderation of the body is preserved.

In terms of protecting vulnerable groups, penalties for prohibited behaviours that harm women and children should be increased, and digital technologies should be used to increase the likelihood of enforcing the law against such behaviours. In terms of increased penalties, sexual offences committed against women and children should be punished more severely than those committed against men and adults, and should be recorded in personal credit files so that they pay a heavier price. In terms of increasing the probability, digital technology's enhanced moderation of censorship, increased ability to identify relevant behaviours and content, and automated modifications to the deterrence and punishment of offences are highly conducive to increasing the probability of detecting and dealing with prohibited behaviours detrimental to the interests of women and children, and the introduction of machine learning can also be used to enhance the efficiency and accuracy of such law enforcement. Therefore, the legal penalties for offences against vulnerable groups, such as women and children, should be increased, and digital technology should be used to improve the probability of enforcement.

5.3 Synergising Multiple Norms and Differentiating Scenarios of Governance

As the influence of law is necessarily limited, social norms can be used to synergise legal governance, enhancing privacy protection and balancing public power on the one hand, and flexibly governing marginal issues and maintaining social order on the other. In terms of privacy protection, as some groups may want to avoid public interference in minor violations, grey areas, and attempts to break the existing law and innovate, even though the law provides exceptions to privacy and personal information protection for law enforcement, there are still social opinions and social norms that demand the protection of privacy and the reduction of the risk of the exercise of personal freedoms in the law enforcement process. Social norms can be brought into the privacy legal system through the doctrine of reasonable expectation of privacy and scenarios to limit public power along with the requirements of substantive and procedural justice. In terms of maintaining order, the aforementioned marginalisation is not left to chance, but rather social norms are used to provide flexible governance and to maintain communication and mutual understanding with opposing parties. For example, it is difficult for the law to draw black-and-white behavioural boundaries for various types of behaviour and content commonly known as "marginality", but social norms can be used to evaluate such behaviour positively or negatively, or even refine the rules of behavioural judgement that the law fails to specify, through the full display of users' comments and even ratings, and the platform's and the industry's positive guidance and initiatives, to gradually form a system that can be used to judge behavioural judgements that are not explicitly stipulated by law. However, social norms can be used to evaluate such behaviours positively or negatively by fully displaying user comments and even ratings, and even refining the rules for judging behaviours not explicitly provided for in the law, so as to gradually form universal social norms that can be upgraded into laws and promote the organic unity of law-abidance and law enforcement. Therefore, social norms can play an important role in supplementing the influence of law and adjusting privacy duties. Admittedly, due to the pluralistic development of social culture, it is often difficult to reach a universal social consensus, and thus the relevant issues should not be permitted or prohibited across the board, but rather different scenarios should be differentiated and different measures should be taken to maintain the balance between the public and the private in specific scenarios.

6. Conclusion: The Expansion of the Sociology of Law in Privacy Research

Legal research on privacy has a natural law-sociological nature, because the legal doctrine that defines privacy is the theory of reasonable expectation of privacy, which takes the reasonable scope of privacy recognised by social norms as the scope of the legal protection of privacy, and the most influential current legal theory of privacy - scene The most influential legal theory of privacy - the scenario theory - is also a development of the reasonable expectation of privacy, focusing on the reasonable expectation of privacy in specific scenarios. However, the study of privacy is still dominated by legal doctrine, which ultimately focuses on the definition of the scope of privacy protection in a particular issue, rather than consciously approaching the issue of privacy from the perspective of sociology of law, and has not returned to the interaction between law and society, which is the concern of sociology of law.

This paper examines the theoretical connotation and institutional purpose of privacy as a duty, and the challenges and responses in the digital age, and helps to open up a sociological approach to privacy research. This approach can not only comprehensively examine the theoretical and practical connotations of the privacy issue, but also open up the duty of privacy relative to the right to privacy from the fundamental issue of defining public-private relations, and use it as another lever to balance the social order and individual freedom, as well as return to the core sociology of law-society relationship from the discussion of the privacy issue and see how law and society interact with each other between the two extremes of over-regulation and over-permissiveness in the digital age. It is also possible to return from the discussion of privacy to the core issue of the relationship between law and society in the sociology of law, and to see a new type of interaction between law and society in the digital age between the polarities of over-regulation and over-permissiveness.