30 Pages Posted: 21 Jul 2011
Date Written: July 19, 2011
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.
Keywords: Privacy, Autonomy, Warren and Brandeis, Identity, Freedom of expression, Constitutional law
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