The Two Western Cultures of Privacy: Dignity Versus Liberty

Abstract

Privacy advocates often like to claim that all modern societies feel the same intuitive need to protect privacy. Yet it is clear that intuitive sensibilities about privacy differ from society to society, even as between the closely kindred societies of the United States and continental Europe. Some of the differences involve questions of everyday behavior, such as whether or not one may appear nude in public. But many involve the law. In fact, we are in the midst of major legal conflicts between the countries on either side of the Atlantic - conflicts over questions like the protection of consumer data, the use of discovery in civil procedure, the public exposure of criminal offenders, and more. Clearly the idea that there are universal human sensibilities about privacy, which ought to serve as the basis of a universal law of the protection of privacy, cannot be right.

This article explores these conflicts, trying to show that European privacy norms are founded on European ideas of personal honor. Continental privacy, like continental sexual harassment law, prison law, and many other bodies of law, aims to protect the personal honor of ordinary Europeans. American law takes a very different approach, protecting primarily a liberty interest. These are not differences that we can understand unless we abandon the approach taken by most privacy advocates, since they have little to do with the supposedly universal intuitive needs of personhood. Instead, they are differences that reflect the contrasting political and social ideals of American and continental law. Indeed, we should broadly reject intuitionism in our legal scholarship, focusing instead on social and political ideals.