Privacy

Eric Barendt

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351908801
• Edition: 1
• Topic: Derecho
• Subtopic: Teoría y práctica del derecho

Privacy is a complex and controversial right. The essays in this book address fundamental issues about its value and how best it may be defined. Some of them examine its importance and scope in the context of the information society in which both government and business acquire ever more knowledge about the conduct and attitudes of individuals. Others address the use of privacy to protect the rights of women and to protect individuals against the media.

Part I
Why Privacy is Valuable

[1]
PHILOSOPHICAL VIEWS ON THE VALUE OF PRIVACY

GLENN NECLEY*

Philosophical literature has given scant attention to the problem of privacy as such; the framework of reference within which privacy has so recently and widely become a matter of controversy is a distinctly contemporary one. What has not been discussed, or at least made clear, is why privacy is commonly considered a right or a value to be protected by the law. There is no historical consensus, in philosophy, politics, or law, that it is such a right. Few philosophers would argue that privacy is a “natural” right or that the intrinsic nature of privacy establishes it as a legal right.

To be sure, it seems apparent that the circumstances of existence in modern society are in many ways more restrictive of privacy than conditions in the past; we seem haunted by specters of the organization man, Big Brother, and the omnipresent state. Yet the facts of a changing social and political structure do not themselves attest the badness of that change. Indeed, opinion, judgment, and choice may be exclusively individual and private—and perhaps it is true that in ordinary discourse we generally assume them to be so—but this observation does not establish privacy as an essential, or even desirable, ingredient of opinion and judgment. Any analysis appropriate to modern political and legal structure must take these facts into account, but the facts themselves leave unanswered the question of the status of privacy as a right.

The simple answer to this question is that some degree of privacy is necessary in order to ensure to the individual the possibility of moral choice and action; but this is too simple an answer. Given a definition of moral choice as a right of the individual, one might then proceed to a description of the elements necessary to fulfill the requirements of that definition, in which privacy might or might not be essential. The claim that privacy is a right to be protected by law is, therefore, a question of value discrimination, and the justification of privacy in this context is a problem of moral definition and analysis. The definition of moral choice does not lend itself to factual description, and no amount of word-mongering will make it otherwise. The initial question in moral theory is itself a value question: what ought the moral status of the individual to be?

On the matter of what the moral option of the individual should be, the history of philosophical thought presents such a wide divergence of definitions as in some instances to yield only flat contradictions. The controversy has been further muddled by the almost invariable tendency of proponents of a value judgment to attempt a justification of their definition by purported factual reference. This persistent effort of moralists to establish a value judgment on unwarranted factual grounds—such as by reference to the “natural,” the “historical,” or the “divine”—has tempted many contemporary thinkers to dismiss the entire controversy as meaningless and to assert a limitation of discourse to that which has warranted factual reference.

The reminder is somewhat fatuous, but necessary, that problems are not resolved by being ignored. The question of how the moral status of the individual is to be defined remains the most profound consideration of our philosophy, for that definition will entail the factual description of the political, social, and legal structure which will meet the requirements of that definition. It is clear that any consideration of whether privacy is indeed a right of the individual will depend upon what definition of the individual we accept. While the question of privacy has rarely been directly discussed in moral thought, it is not surprising that the problem has been lurking on the fringes of all moral, political, and legal theory, awaiting consideration. It is a historical commonplace that problems often await acknowledgment until circumstantial developments force them upon our attention. After centuries of failure to recognize privacy as a factor pertinent to moral and political speculation, we suddenly find ourselves concerned with the right of privacy as one of the most critical problems of contemporary political and legal analysis. The nature of our social structure as it has developed in the recent past forces us to recognize that the privacy which until now has apparently been casually presumed as an ingredient of moral action can no longer be presumed but must be specified.

The history of the recent past has shaped for us, whether we like it or not, a highly centralized, institutional, and increasingly corporate social and political structure. Within the complex of corporate pressures that prescribe the possibilities of action for every man in the modern state, it is a matter of serious concern what latitude of moral discretion is allowed to him. The question is no longer so much one of preventing an invasion of “rights” as that of maintaining conditions that will make the exercise of rights possible. Whether or not it is desirable that the law exercise its function in thus assuring conditions for the realization of privacy is dependent on philosophical definition, not on fact.

The first question, therefore, that must be asked about the right of privacy is whether it is indeed a right at all. Political philosophies present profoundly different views as to the right, or desirability, of private judgment, conscience, or reservation. Italian courts, for example, have this year for the first time allowed that “conscientious objection” may be an acceptable justification for “refusing obedience,” and the negative attitude of many political systems to any such claim is well known. The philosophy that describes the political structure as essentially corporate in nature has traditionally derived from, or resulted in, a description of the moral status of the individual that not only denies the right of privacy but designates it a political and moral misdemeanor. Hegel’s distinction of moralität, as referring to individual private judgment, and Sittlichkeit, the definition of obligation in terms of duties defined by the corporate, institutional order, is, of course, the classic example of political philosophy which argues that the claim of privacy is simply an exhibition of caprice, triviality, and irresponsibility. The moral realization of the individual depends entirely upon the degree to which he can identify his interests and duties with the value structure appropriate to the particular corporate order in which he finds himself. Such a view allows little controversy in respect to the right of privacy, since the rights and duties of individuals are determined by the existing corporate orders in which he participates, the highest form of which is the state. Moral discrimination is thus not a function of “private” individual judgment but of historical relativity. The final reduction of privacy is accomplished by this view with the claim that, in the last resort, the individual must accept the value interpretation of an “arbiter” who properly discerns the duties and obligations of the historic moment.¹

The traditional and casual interpretation of British-American philosophy has been that it is sternly opposed to the corporate view, defining the political structure as a collectivity the legitimacy of which derives from and depends upon the private, individual judgments of those who are comprised in that collectivity. Hence, in this interpretation of our political philosophy, privacy is assumed to be a right justified by utility if not by nature. The right of privacy therefore seems to be an integral and essential ingredient of our political philosophy, a right to be protected by law. Such an analysis is indeed casual, a thoroughly inadequate description of the development of the concept of privacy in our thought, but the persistence of the ill-defined assumption in the face of the facts of contemporary social organization is indicative of the confusion and ambiguity that characterize the idea of privacy.

Perhaps the last philosopher who gave any significant attention to the privacy of the individual was Jeremy Bentham; his strongly expressed view that law was an invasion of privacy that must be justified on the ground of necessary utility was somewhat, but not profoundly, modified by John Stuart Mill. Certainly, our ideas of the function and justification of law have changed rather drastically in the past hundred years, largely under the impact of changing facts of political order. Yet so little attention has been given by philosophers to the intimate relation of law to private judgment and action that one must wonder, on reading much of our moral and philosophical literature, just what kind of amorphous, politically unattached individual these ethicists are talking about. It would not be sensible to argue that Bentham’s ideas are immediately applicable to our problems, but it is regrettable that subsequent thought did not recognize the importance of his effort to distinguish carefully and distinctly the area of private, individual action and responsibility from that of political and legal liability.² His perception of the problems that would ensue from a confusion of moral responsibility and legal liability provide numerous examples that are relevant to our consideration—for example, his suggestion that any legal effort to enforce “prohibition” would involve such an invasion of privacy as to occasion, on purely utilitarian grounds, more harm than good in the social fabric.³

Bentham’s break with tradition in moral and political analysis was more profound than his vehement rejection of natural law and natural rights. What emerges in historical retrospect is that Bentham was in fact rejecting a model of analysis that had been inherited from Greek philosophy. That model has been aptly termed by Peter Laslett the “face-to-face society.”⁴ It was a model singularly inappropriate to the facts of the political state as these facts were beginning to become self-evident in the nineteenth century. Political fact could no longer be brought within the framework of an analysis that assumed a homogeneity—geographic, ethnic, religious, moral—which greatly simplified the problems of moral and legal relationship. Kant had finally recognized this but so belatedly that his brief treatment in Religion Within the Limits of Reason Alone was without appreciable audience. Hegel sought, by a tour de force, reinforced by dubious historical dialectic, to describe a political organism of such homogeneity that its corporate structure would resolve moral and political, individual and social, relations and conflicts. In the assessment of subsequent history, however, with its repeated attempts to achieve the model of corporate order by force, Hegel should not be made the victim of abuse for the excesses we have witnessed in the name of ethnic purity and national aggrandizement.

It was not only in Hegelian thought that there persisted this model of a homogeneous face-to-face social structure in which questions of private judgment and opposition would not arise. Through the eighteenth and up to the middle of the nineteenth century, the communitarian ideal was a dominant model in British, American, a...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Acknowledgements
• Series Preface
• Introduction
• Part I Why Privacy Is Valuable
• Part II The Definition And Scope Of Privacy
• Part III The Feminist Critique Of Privacy
• Part IV Privacy, The Media And Data Protection
• Name Index