Fresh on yesterday's announcement that Australia is moving towards a broad 'right of privacy', SSRN has
released 'The Concept of a Right to Privacy' by Eoin Carolan (University College Dublin)-
This is a chapter taken from the first edition of The Right to Privacy: A Doctrinal and Comparative Analysis. The book was co-written with Dr. Hilary Delany and published by Round Hall in 2008.
The chapter provides a conceptual analysis of the notion of a right to privacy and serves as an introduction to the general themes that are explored in the remainder of the book in chapters.
The chapter reviews the literature on the difficulties of defining a right to privacy and provides a summary of the work of authors such as Judith Jarvis Thomson, Russell Brown, Warren and Brandeis, Ruth Gavison, Beate Rossler, Nicole Moreham and Daniel Solove.
The chapter argues in favour of an approach in accordance with which the right to privacy is justified as a necessary element of a system which adequately values and protects human autonomy. Privacy is argued, in this regard, to go beyond the simple protection of the secret or confidential so as to include the social dimension of human existence. Protecting privacy encourages the individual to fully engage in this social sphere by facilitating experimentation, intimacy and the development of a sense of individual and social identity.
The chapter then proceeds to consider the differences between privacy as an autonomy value and privacy as a legally enforceable right. It would not be workable for the law to define privacy as anything which engages individual or social identity.
The chapter therefore proposes a tripartite distinction between different types of privacy claim:• Decisional privacy: This is the entitlement of an individual to make their own decisions. It is argued that this is incoherent as an independent legal right.
• Spatial privacy: This a claim of privacy over a physical space, whether that be territorial privacy or the privacy of the individual’s own body.
• Informational privacy: This is claim of privacy over particular information.
The chapter then considers the extent to which a right to privacy may be regarded as a claim of control over these dimensions. It concludes that control should not be understood in this context as an all-or-nothing entitlement to prevent all access to the area in question. Privacy is a more complex and context-sensitive concept. Thus a right to privacy operates as an entitlement to exercise control over who may access a particular dimension and/or of the use that may legitimately be made of such access. Just what the right involves will depend upon the particular circumstances of the claim.
The chapter concludes by considering the relationship between privacy and freedom of expression. It argues that privacy and freedom of expression are, in many instances, complementary. Protecting privacy may facilitate the individual’s freedom of expression. A conflict will more frequently arise between privacy and the media’s freedom of expression. However, the expression rights of individuals and of the media are different in character and in degree. There is a necessity therefore for a more nuanced and sophisticated understanding of the relationship between privacy and the expression rights of individuals and of the media.
Carolan comments that -
Privacy is a "distinctly contemporary" concept. The notion that individuals enjoy an enforceable entitlement to respect for their private lives is an idea of relatively recent vintage. That the concept of a right to privacy has acquired such contemporary currency is, in large part, attributable to the changed nature of modern society. In contrast to the localised "face-to-face society" of earlier times, we are today living in what Foucault has described as a panoptic society. Technological advances allow access to the previously inaccessible. Modern communications can make images or information about us available to a potential worldwide audience. Information about our beliefs, our habits, our associations and our actions is systematically accumulated by a range of public and non-public bodies. We exist in "a state of conscious and permanent visibility".
Government, media, business organisations and the internet have penetrated our social existence to such an extent that they have colonised and commercialised areas which were previously the preserve of the individual. Our society is becoming a globalised goldfish bowl in which individual space is increasingly scarce. For many commentators, the modern movement towards the protection of privacy rights is a direct reaction to this escalating intrusiveness. It reflects an awareness that "[t]he opportunities for the invasion of privacy are greater [today] than they have ever been".
In many ways, the right to privacy can be seen as the contemporary re-expression of an age-old attachment to the idea of individual freedom. The great Enlightenment authors, from whom we have inherited so many of our legal and political traditions, were primarily concerned with the relationship between the individual and the state.6 Constitutional devices like the separation of powers, the protection of civil and political freedoms, and the independent judicial review of government conduct all aimed to safeguard the citizen against coercive governmental acts. Individual liberty was the philosophical lodestar of these theories.
At that time, the state represented the primary threat to the freedom of the individual. It was unsurprising, therefore, that the political thinkers of the day concentrated on developing constrains on state power. Freedom of speech, of association and of thought functioned as immunities against government action, disabling the sovereign powers of the state. Protecting these zones of individual conduct against governmental interference ensured that they were protected per se. The liberty of the individual was secured by the absence of government action. To an Enlightenment thinker, there was, accordingly, no need for a distinct privacy right.
The traditional focus of liberal democratic theories on the conduct of state institutions is, however, inadequate for two reasons. First, the modern state operates in a more dispersed and decentralised manner than was formerly the case. The interventionist administrative state operates across a range of areas and takes a variety of forms. "Private ordering has been swallowed up government, while government has become in part a species of private ordering ... [T]he government and private spheres are thus melded." Officials exercise power through the making of tertiary rules and discretionary decisions. Libertarian devices which concentrate their efforts solely on the central organs of the state neglect a significant area of government activity.
Secondly, the individual is today susceptible to the exercise of coercive power by a far wider array of public and non-public bodies. The state is no longer the sole repository of coercive power. The actions of a range of organisations potentially impinge upon the freedom of the individual. The risk of public exposure by the media or via the internet can discourage an individual from acting in ways which might attract public reproach. The necessity for health insurance can oblige an individual to disclose private information, undergo tests and refrain from engaging in conduct of which the insurer disapproves. Even the most mundane interactions with non-public institutions may have coercive conduct-shaping effects. Major commercial bodies have the capacity to construct detailed customer profiles, which allows them to incentivise the repetition of past behaviour and thereby discourage individual experimentation. By installing cookies on customers' computers, online retailers can track an individual's browsing and purchasing habits. This allows them to categorise customers according to type and to offer purchasing suggestions based on the actions of other individuals of the 'same' type. The individual is pigeon-holed, homogenised and encouraged to engage in collectively indistinct actions. ... privacy claims retain an intuitive appeal. Most people would agree that privacy is important. Most people also, however, would disagree about what privacy precisely entails. As Post remarked:Privacy is a value so complex, so entangled in competing and contradictory dimensions, so engorged with various and distinct meanings, that I sometimes despair whether it can be usefully addressed at all.
A legal model of privacy protection thus necessarily requires the articulation of a specific conceptual account of privacy. In the absence of a clearly-identified analytical starting-point, a legal privacy right would be incomplete, incoherent, and liable to cause confusion.
... Privacy is a notoriously elastic and equivocal notion. It has a "protean capacity to be all things to all lawyers". Its imprecision as a concept has given rise to extensive academic discussion and debate. A significant proportion of the voluminous literature in this area is dedicated to the preliminary task of defining what privacy is. These discussions have generated heat and light but little unanimity. In fact, "the most notable feature of th[e] literature has been an almost complete absence of agreement concerning both the definition of privacy and the values said to be promoted by the legal protection of privacy". Privacy has been defined in different ways and invoked in support of varying, sometimes even opposing outcomes.
