'Children’s Privacy: The Role of Parental Control and Consent' by Jelena Gligorijevic in (2019) 19(2)
Human Rights Law Review 201-229
comments
Protecting children’s informational privacy has never been more difficult. To what extent does it depend upon parental control and consent, and how is this factor incorporated into the law seeking to protect children’s informational privacy? This paper addresses these questions, considering the relevant jurisprudence of English courts, in particular under the tort of misuse of private information, and the relevant jurisprudence of the European Court of Human Rights under Article 8 of the European Convention on Human Rights. This paper argues that the jurisprudence of both courts’ informational privacy cases reveals a doctrine that prioritizes parental control and consent, above the harm of intrusion to the child. This risks laying a legal terrain that does not accommodate the protection and vindication of children’s informational privacy rights when they conflict with the wishes of, or are not actively protected by, that child’s parents.
'Children’s Capacities and Paternalism' by Samantha Godwin in (2020)
Journal of Ethics comments
Paternalism is widely viewed as presumptively justifiable for children but morally problematic for adults. The standard explanation for this distinction is that children lack capacities relevant to the justifiability of paternalism. I argue that this explanation is more difficult to defend than typically assumed. If paternalism is often justified when needed to keep children safe from the negative consequences of their poor choices, then when adults make choices leading to the same negative consequences, what makes paternalism less justified? It seems true that ordinary adults have capacities enabling them to promote their interests in ways most children lack. This can explain why paternalism is more often justified towards children than adults. What is not explained, however, is why paternalism would be justifiable for children, but not adults, when neither possess the relevant interest-promoting capacities – exactly the cases when paternalism towards adults might be considered. I argue that this dilemma undercuts capacities-based explanations for the belief that childhood is distinctively relevant for the permissibility of paternalism. I then address defenses of both consequentialist and deontological versions of the capacities-based explanation. Absent this capacities-based explanation, I argue that the intuition that less demanding justificatory standards apply to paternalism when directed at children than when directed towards adults presents unresolved problems for egalitarians.
Gligorijević's 'Privacy at the Intersection of Public Law and Private Law' [2019]
Public Law 563
comments
To demonstrate that any common law system can adequately and legitimately protect informational privacy through a private law action influenced by public law, this paper argues that: tort law can accommodate privacy protection, and the English action is appropriately labelled a ‘tort’; the English tort does not depend upon the Human Rights Act 1998 (HRA), allowing other common law jurisdictions to choose to adopt aspects of that tort; and the public law tool of proportionality can determine privacy tort outcomes in a way that ensures credible legal protection of the fundamental right to privacy in the private sphere, without unjustifiably encroaching upon other rights.
