The vocabulary of the privacy debate - privacy rights and privacy interests

Rights serve the dual roles of safeguarding peoples interests and of providing
them with Control over their choices.
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Writers,
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architects, lawyers, sociologists and psychologists
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have all contributed to the
vocabulary of the privacy debate. Boyle
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extracts three basic elements of privacy from the
literature for the purpose of deriving a consistent lexicon for privacy!
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Solitude! control over ones interpersonal interactions with other people.
Confidentiality! control over other peoples access to information about oneself.
Autonomy! control over what one does, i.e., freedom of will.
Boyles deconstruction of the elements of privacy couples these three genres of control of
self#environment boundaries with related concepts! solitude with attention$
confidentiality with fidelity; and autonomy being related to observable
manifestations of identity.
By coupling solitude %isolation& with the idea of being noticed, i.e. attention, Boyle
extends the scope of solitude to include control over attention. 'ust as some people
see( solitude, other people see( attention. )rtist )ndy Warhol was *uote as saying +i!n
the future everyone will "e world famous for fifteen minutes+.
,
-his pop#cultural
reference provides a description for those who see( public attention and become
celebrities or fifteen minutes or longer.
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By coupling confidentiality of access to information with fidelity, Boyle extends the
scope of confidentiality to include control over the fidelity of information available to
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0aniel 1 2ausman 3 1ichael 4 5c5herson, 6#conomic Analysis and $oral %hilosophy7, 8ambridge
9niversity 5ress %/::,& page /2,.
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;eorge <rwells novel 61&'(7 being a source of much of the rhetorical language of the privacy debate,
providing! 6<rwellian7, 6Big Brother is watching you7 3 6-hought 5olice7.
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'oan =. 4ieber, %rivacy ) Confidentiality* As Related to +uman Research in Social ) ,ehavioral
Science, 8alifornia 4tate 9niversity, 2ayward http!>>onlineethics.org>reseth>nbac>hsieber.html
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1ichael Boyle, A Shared -oca"ulary for %rivacy, ?http!@@guir.ber(eley.edu>pubs>ubicomp2AA3>
privacywor(shop>papers>boyle#ubicomp#w,#privacy.docB, incorporating the wor( of! )ltman, Brierley#
Cewell, 8hemers, ;avison, Delvin, Westin and other referenced authors.
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4ee also chapter / of Consultation %aper of the Civil .ia"ility for /nvasion of %rivacy, 5rivacy 4ub#
8ommittee of the Eaw Feform 8ommission of 2ong Dong %principal author ;odfrey D G Dan&.
?http!>>www.info.gov.h(B
,
?http!>>en.wi(ipedia.org>wi(i>/"HminutesB %Iuote from circa /:,J& )lthough some assert the *uote
should be 6i!n the future everyone will "e on television for fifteen minutes.
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A celebrity is a famous person. 0he etymological origin of the word is 1one who is cele"rated.1 An
alternative definition of a cele"rity is a person who is famous for "eing famous 2regardless of what first
"rought them to fame3. 4hat it ta5es to "e a cele"rity depends on the cultural conte6t and the historical
time. 0he advent of mass media increased the pu"lic interest in cele"rities7 and has even developed into a
self8su"stantiating circuit 2the 9cult of cele"rity9 i.e. "eing famous for "eing famous and not for having
achieved anything else3. Some ordinary people volunteer to "ecome 5nown on television 2e.g. in reality
television shows3 for a taste of cele"rity7 though cele"rity from a reality show is usually called 1fleeting
cele"rity1 or 11: minutes of fame1 2a term coined "y Andy 4arhol3. ?http!>>www.free#
definition.com>8elebrity.htmlB
1orris )verill, 2A/4
others. -hus Boyle lin(s the idea of people see(ing to (eep information confidential
%secret&, with people see(ing to disclose information about themselves. -his is, people
wanting fidelity %accuracy& in the re#telling of the information they wish released into
the public arena.
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By coupling autonomy in relation to control of observable manifestations of identity,
Boyle addresses values that may counterbalance privacy interests. Girstly, Boyle
recogniKes the freedom to do as one wants without interference from others may be in
conflict with legal rights asserted by others$ therefore freedoms may be constrained by
counterbalancing the legal rights of others. 4econdly, Boyle is lin(ing autonomy and
identity in the context of the level of control an individual may see( in relation to what
others may record, in computer files and other information databases, in relation to the
actions of that individual.
5rivacy is recogniKed as a personal right in the context of the international declaratory
statements on human rights. Ln this context privacy rights can be e*uated to privacy
needs$
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that is, the human right is intended to protect a privacy need that has a
personal and social benefit that is given legal recognition$ or in respect of some privacy
need that some may assert should be given legal recognition. 2owever privacy is not a
compelling or primary need, such as the need for air, food or sleep,
/A
but is a social need!
that is, a need that if satisfied, creates a more healthy society.
Lt is not the intention of this article to prove the existence of a non#legal right of privacy.
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Girstly, proof of the benefits of privacy falls in the fields of sociology and psychology$
secondly, privacy is recogniKed as being partially defined by socio#cultural values with
both cultural and situational variations as to the optimum level of privacy an individual
may wish to attain,
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indeed within a single culture one individual may see( solitude,
while another see(s attention. Ln the proof of a claim for an invasion of a privacy
interest! one plaintiff may prove existence of a psychiatric condition resulting from the
invasion of interests that can be described as privacy interests$
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another plaintiff may
only be able to establish that invasion of privacy interests resulted in their public
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-he law of defamation can be viewed as providing remedies of an aspect of privacy interests in
circumstances where the inaccurate representation or presentation of information results in damage to
reputation.
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-he need for privacy can be discussed in the context of privacy being a value that reinforces human
dignity and autonomy! ' Fachels, 4hy %rivacy is important %/:."& 4 5hil 3 5ub )ff 4$ = ' Bloustein,
%rivacy as an Aspect of +uman ;ignity* An Answer to ;ean %rosser %/:,4& 3: CM9EF :,2, :./$8 Greid,
%rivacy %/:,J& .. Male E' 4..$ Secrecy* ;ignity or Autonomy< -iews of %rivacy as a Civil .i"erty, 0
Geldman %/::4& 4.%2& 8E5 4/. 5rofessor Geldman argued that any non#consensual photography is a
compromise of human dignity.
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4ee )braham 1aKlows hierarchy of human needs described in 6$otivation and %ersonality7 %/:"4& and
60owards a %sychology of ,eing7 %/:,J&.
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4ee Futh ;avison, %rivacy and the .imits of .aw, and other authors collected in %hilosophical
;imensions of %rivacy* An Anthology %/:J4& 4choeman %ed&. F ;avison, %rivacy and the .imits of .aw
%/:JA& J: Male E' 42/, at 43..
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'oan =. 4ieber, %rivacy ) Confidentiality* As Related to +uman Research in Social ) ,ehavioral
Science, 8alifornia 4tate 9niversity, 2ayward http!>>onlineethics.org>reseth>nbac>hsieber.html
/3
Gor example! Alison Ro"yn =rosse v Ro"ert >ames %urvis N2AA3O I08 /"/.
1orris )verill, 2A/4
humiliation.
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-he *uestions as to either or both plaintiffs has a legitimate claim for either
an inPunction to stop the course of conduct or compensation for the harm suffered,

are
capable of analysis in the context of the evolution of legal remedies in respect of privacy
interests.

-he e*uitable remedy for breach of confidence focuses on the confidentiality of
information. -he revolution of the e*uitable remedy show that information is a broad
concept, encompassing photography in which the information conveyed arises from the
interpretation of the contents of the photographs, such as +ellewell v Chief Consta"le of
;er"yshire,
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in which Eaw ' was of the opinion that the photographs of the applicant,
%police mug shots&, was capable of being the subPect of an obligation of confidence.
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Ln this article, the use of the expression privacy interests is preferred to that of privacy
rights as the language of human rights
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or rights of privacy can be *uestion begging.
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4ome of the possible *uestions are! whose privacy rightsQ in what circumstances do
such rights existQ against whom can these rights be enforcedQ What duties accompany
the privacy rightsQ What happens when other rights or values are in conflict with the
privacy rightsQ Ln many situations in which a right of privacy is asserted, there may be
another interested party asserting a right of free speech in respect of that which is
asserted to be private.
)t this point of the human rights debate, both rights of privacy and rights of free
speech are values recogniKed in international covenants and declarations. -he references
to privacy and free speech in those covenants and declarations creates an international
standard to which signatory states commit themselves$ at least as a declaration of intent
without the necessary follow#though to enact legislation or to otherwise promote the
enforcement, in domestic law, of rights of privacy and rights of free speech.
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Gor example! Alla =iller v ,oris %rocopets N2AA4O R48 //3.
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N/::"O / WEF JA4$ N/::"O 4 )ll =F 4.3 at 4,., that the use of telephoto lenses may suggest the
surreptitious nature of the behaviour of the photographer. 4ee also ;leeson 8', in A,C v .enah, ibid, at
N3"O.
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Ln +ello? /7 ibid, the =W8) confirmed that photographs were capable of being confidential information S
see Deene E' N2AA/O IB :,. at /A//. 0isclosures of information by the police are outside the scope of this
article. 4ee! R. 2@3 v Chief Consta"le of the 4est $idlands %olice N2AA4O =W28 ,/ %)dmin&$ N2AA4O /
WEF /"/J S the exercise of the discretion to disclose information, as authoriKed by the %olice Act 1&&A$
4ood v 4est $idlands %olice N2AA4O =W8) 8iv /,3J$ N2AA"O / WEF ,4 # a defamation action.
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-he language of rights will be used in the discussion of the declaratory statements of human rights.
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4ee A,C v .enah ibid, per ;leeson 8' at N4/O.
1orris )verill, 2A/4