Privacy

"In its recent issues paper on workplace privacy, the Victorian Law Reform Commision9 stated: The term [privacy] has different meanings indifferent contexts. One thing “is clear”, however: most people use the term in a way that suggests that “privacy” is a meaningful and valuable thing. It then went on to state: [P]rivacy always includes and refers to autonomy and dignity. This means that the protection of privacy will always encompass the following rights: *not to be turned into an object or thing, that is not to be treated as anything other than an autonomous human being; and *not to be deprived of the capacity to form and develop relationships. Thus, according the Victorian Law Reform Commission, “privacy is understood as a right underpinned by autonomy and dignity”. This analysis is conceptually flawed. It confuses the notion of “definition” and “justification”. To define a term or concept is to set out the necessary and sufficient conditions which demarcate the correct usage of the term or concept. This isa “descriptive” process. The process of justification, on the other hand, is generally “normative” in character, in that it provides reasons in support of a practice. The inclusion of normative concepts in the definition of privacy skews the parameters of the discussion making it logically impossible t evaluate the desirability of the practice or interest against the full catalogue of moral principles and theories. The incorporation of moral virtues *such as autonomy) into the deifnition begs the question of why we should value privacy. It is almost universally agreed that autonomy and dignity are desirable virtues. Hence, any interest that is derived from them will obviously also be morally desirable. Quite simply, the definition assumes too much. The definition advanced by the Victorian Law Reform Commission is especially unhelpful for an even more basic reason. It runs foul of the most basic “rule of deifning”: to clarify the term or interest at hand. The distinction between being treated as an object and an autonomous person, and the freedoms that are necessary to form meaningful relationships, are inherently grey and use of such concepts introduces more confusion than clarity."

"“Privacy” can be viewed as a term with referential meaning; it is typically used to refer to or denote something. But “privacy” has been used to denote many quite different things and has varied connotations. As Edward Shils observed 20 years ago: Numerous meaning crowd in the mind that tries to analyze privacy: the privacy of private property; privacy as a proprietary interest in name and image; privacy as the keeping of one's affairs to oneself; the privacy of the internal affairs of a voluntary association or of a business; privacy as the physical absence of others who are unqualified by kinship, affection or other attributes to be present; respect for privacy as the respect for the desire of another perosn not to disclose or to have disclosed information about what he is doing or has done; the privacy of sexual and familial affairs; the desire for privacy as the desire not to be observed by another person or persons; the privacy of the private citizen as opposed to the public official; and these are only a few. Definitions of privacy maybe narrow or extremely broad. One of the best known definitions of privacy is that set forth by Samuel Warren and Louis Brandeis in a 1890 article that first enunciated the concept of privacy as a legal interest deserving an independent remedy. Privacy was described as “the right to belet alone”. In spite of its breadt, this view has been influential for nearly a century. In the 1960s, 1970s, and 1980s, the proliferation of information technology (and concurrent developments in the law of reproductive and sexual liberties) has inspired further and more sophisticated inquiry into the meaning of privacy. In hs work “Privacy and Freedom”, Alan Westin conceived of privacy as “an instrument for ahcieving individual goals of self realization” and defined it as “the claim of inndividuals, groups or institutions to determine for themselves when, how and to what extent informatio about them is communicated to others,” approaching the concept in term sof informational privacy. WA Parent defined privacy in ters of information as “conditio of not having undocumented personal information about onself known by others”. In contrast, Ruth Gavison defines privacy broadly as “limited access in the senses of solitude, secrecy and anonymity”. In her view, “privacy” is a measure of the extent to which an individual is known, the extent to which an individual is the subject of attention, and the extent to which others are in physical proximity to an individual. Her deifnition of privacy was to include: such “typical” invasions of privacy as the collection, storage, and computerization of information; the dissemination of information about individuals; peeping, following, watching, and photographing individuals intruding or entering “private” places; eavesdropping, wiretapping, reading of leters, drawing attention to individuals, required testing of individuals; and forces disclosure of information [emphasis added]."

"Defining privacy in terms of access to personal information is popular among legal schlars; when lawyers refer to the legal protection of privacy, they are often referring to the protection of an individual's information privacy, theability of people to control the flow of information about themselves. While a definition of privacy focusing only on information privacy interests has the advtange of simplicity, it excludes two other situations that are commonly regarded as losses of privacy: intrusions upon seclusion and deprivation of anonymity. Of all the many attempts at definition, Gavison's descriptive, neutral concept of privacy – centered around the notion of the degree to which an individual is assessible to others – seems to us to be the most satisfactory."

"[A]n individual enjoys perfect privacy when he is completely inaccessible to others. This may be broken into three independent components: in perfect privacy no one has any information about X, no one pays any attention to X, and no one has physical access to X. Perfect privacy is, of course, impossible in any society. The possession ro enjoyment of privacy is not an all or nothing concept, however, and the total loss of privacy is as impossible as perfect privacy. A more important concept, then, is loss of privacy. A loss of privacy occurs as others obtain information about an individual, pay attention to him, or gain access to him.17 Gavison uses the term “physical access” to mean “physical proximity – that Y is close enough to touch or observe X through normal use of his senses”.18 Thus, a person suffers a loss of privacy in this sense when others enter into a space where that person has previously enjoyed solitude. A person becomes the subject of attention in a way that involves loss of privacy when he or she is followed, listened to or observed in any other way, for example, when others are able to listen to or observe her or him through the use of surveillance devices. This third element of accessability is information known about an individual. For Gavison, the acquisition of any information at all about an individual involves a loss of privacy in the neutral sense. While the three elements of accessibility are often interrelated, they need not be: Each -element- is independent in the sense htat a loss of privacy may occur througha change in any one of the three, without a necessary loss in the other two. The concept is nevertheless coherent because the three elements are all part of the notion of accessability, and are related in important ways.19"

"Some writers, such as Westin, introduce the element of “control”, defining privacy in terms of the extent to which individuals have “control” over, for example, the flow of information about themselves. Gavison however argues convincingly against introducing the element of “control” at the definitional stage, where the aim should be to formulate a neutral “descriptive” definition that does not pre-empt questns about the “value” of privacy, such as the question of when society, and the law, should respect and enforce an individual's privacy choices. Of course, as Gibbs points out, the notion of “control” is not always applicable, even in the context of discussing a “right” to privacy, since it is not possible for individuals to have control over all thhe ways in which they may suffer a loss of privacy against their wishes. The next quesiton is whether society hould recognise an individal “right” to privacy, by which we mean that a person should be able to choose the degree to hich he or she is assessible to tohers; that as far as possible, a person should have “control” over their accessibility to others and where control is not possible, that others should refrain from gaining access to that person against their wishes."

"[P]roponents of the right can simply assert the existence of a right to privacy and, equally validly, opponents can assert a “right to know”. An impasse is then reached because there is no underlying principle that can be invoked to provide guidance on the issue. As with many rights, the victor may unfortunately be the side which simply yells the loudest. This may seem to be unduly dismissive of rights-based theories and pay inadequate regard to the considerable moral reforms that have occurred against the backdrop of rights talk over the past half-century. There is no doubt that rights claims have proved to be an effective lever in bringing about social change. As Campbell correctly notes, rights have provided “a constant source of inspiration for the protection of individual liberty”. For example, reoognition of the (universal) right of liberty resulted in the abolition of slavery; more recently the right of equaliy has been used as an effective weapon by women and other disenfranchised groups. For this reason, it is accepted that there is an ongoing need for moral discourse in the form of rights. For this reason, it is accepted that there is an ongoing need for moral discourse in the form of rghts. There is so even in deontological rights-based moral theories (with their absolutist overtones) are incapable of providing answers to questions such as the existence and content of proposed rights, and even if rights are difficult to defend intellectually or are seen to be culturally biased. There is a need for rights-talk, at least at the “edges of civilisation and in the tangle of international politics”. Still the significant changes to the moral landscape for which non-consequentialist rights have provided the catalyst must be accounted for."

"How then does one justify (as opposing to merely asserting) a right to privacy within a rights-based theoretical framework. Logically the only way to do this is to reference it back to more fundamental values which are advanced by the recognition of the right to privacy. This is the exact methedology employed by most adherents of a right to privacy. To this end, as we have seen, there are typically two values from which the right to privacy is said to be derivative: dignity and autonomy. We now consider these values separately to derermine if in fact they are capable of providing a foundation for the right to privacy."

"In recent privacy cases, here and in the United Kingdom, the courts have identified autonomy as the value underpinning the legal recognition of a right to privacy at common law. Some writers have asserted that privacy (characterised as “freedom from intrusion”) is a necessary condition for the exercise of autonomy (characterised as “freedom to act”). Others have claimed that: [A]t its core privacy is concerned with ensuring that an individual may develop and maintain an integrated personal structure and identity, and practise an individual autonomy. Before considering the plausibility of such an approach two issues must be addressed: the meaning of autonomy and its foundation."

"Personal or physical space is an important aspect of privacy. While there is a widespread cultural norm that individuals have a small zone of “personal space” into which others ought not intrude and people often feel uncomfortable when this area is encroached upon, there is no legally enforceable right protecting such a zone."