THE CONCEPT OF A RIGHT TO PRIVACY

THE EMERGENCE OF A RIGHT TO PRIVACY

Privacy as a Contemporary Value

Privacy is a “distinctly contemporary” concept.1 The notion that individuals enjoy an
enforceable entitlement to respect for their private lives is an idea of relatively recent
vintage. That the concept of a right to privacy has acquired such contemporary currency
is, in large part, attributable to the changed nature of modern society. In contrast to the
localised “face-to-face society”2 of earlier times, we are today living in what Foucault has
described as a panoptic society.3 Technological advances allow access to the previously
inaccessible. Modern communications can make images or information about us
available to a potential worldwide audience. Information about our beliefs, our habits, our
associations and our actions is systematically accumulated by a range of public and non-
public bodies. We exist in “a state of conscious and permanent visibility”.4
Government, media, business organisations and the internet have penetrated our social
existence to such an extent that they have colonised and commercialised areas which
were previously the preserve of the individual. Our society is becoming a globalised
goldfish bowl in which individual space is increasingly scarce. For many commentators,
the modern movement towards the protection of privacy rights is a direct reaction to this
escalating intrusiveness. It reflects an awareness that “[t]he opportunities for the invasion
of privacy are greater [today] than they have ever been”.5

The Relationship between Privacy and Freedom

In many ways, the right to privacy can be seen as the contemporary re-expression of an
age-old attachment to the idea of individual freedom. The great Enlightenment authors,
from whom we have inherited so many of our legal and political traditions, were
primarily concerned with the relationship between the individual and the state.6
Constitutional devices like the separation of powers, the protection of civil and political
freedoms, and the independent judicial review of government conduct all aimed to
safeguard the citizen against coercive governmental acts. Individual liberty was the
philosophical lodestar of these theories.
At that time, the state represented the primary threat to the freedom of the individual. It
was unsurprising, therefore, that the political thinkers of the day concentrated on

1
G. Negley, “Philosophical Views on the Value of Privacy” (1966) 31 Law & Contemporary Problems 319
at 319.
2
P. Laslett ed., Philosophy, Politics and Society (1st ed., Blackwell, 1956), quoted ibid. at 322.
3
See M. Foucault (A. Sheridan trans.), Discipline and Punish: The Birth of a Prison (Penguin, 1979). This
phrase refers back to Bentham‟s plan for the Panopticon – a prison in which inmates could be seen and
supervised by a single officer without being aware if they were being watched or not. See M. Bozovic ed.,
Jeremy Bentham: The Panopticon Writings (Verso, 1995).
4
Foucault, op. cit. at 20.
5
Sir Brian Neill, “Privacy: A Challenge for the Next Century” in B. Markesinis ed., Protecting Privacy
(OUP, 1999), at 27.
6
See, for example, the work of T. Hobbes, The Leviathan (1651), J. Locke, Two Treatises of Government
(1690); Montesquieu, L’esprit des lois (1748); and the work of J. Madison in I. Kramnick ed, Madison,
Hamilton & Jay: The Federalist Papers (Penguin, 1987).

Electronic copy available at: http://ssrn.com/abstract=1889243

developing constrains on state power. Freedom of speech, of association and of thought
functioned as immunities against government action, disabling the sovereign powers of
the state. Protecting these zones of individual conduct against governmental interference
ensured that they were protected per se. The liberty of the individual was secured by the
absence of government action. To an Enlightenment thinker, there was, accordingly, no
need for a distinct privacy right.
The traditional focus of liberal democratic theories on the conduct of state institutions
is, however, inadequate for two reasons. First, the modern state operates in a more
dispersed and decentralised manner than was formerly the case. The interventionist
administrative state operates across a range of areas and takes a variety of forms. “Private
ordering has been swallowed up government, while government has become in part a
species of private ordering …. [T]he government and private spheres are thus melded.”7
Officials exercise power through the making of tertiary rules and discretionary decisions.
Libertarian devices which concentrate their efforts solely on the central organs of the
state neglect a significant area of government activity.
Secondly, the individual is today susceptible to the exercise of coercive power by a far
wider array of public and non-public bodies.8 The state is no longer the sole repository of
coercive power. The actions of a range of organisations potentially impinge upon the
freedom of the individual. The risk of public exposure by the media or via the internet
can discourage an individual from acting in ways which might attract public reproach.
The necessity for health insurance can oblige an individual to disclose private
information, undergo tests and refrain from engaging in conduct of which the insurer
disapproves. Even the most mundane interactions with non-public institutions may have
coercive conduct-shaping effects. Major commercial bodies have the capacity to
construct detailed customer profiles, which allows them to incentivise the repetition of
past behaviour and thereby discourage individual experimentation. By installing cookies
on customers‟ computers, online retailers can track an individual‟s browsing and
purchasing habits. This allows them to categorise customers according to type and to
offer purchasing suggestions based on the actions of other individuals of the „same‟ type.
The individual is pigeon-holed, homogenised and encouraged to engage in collectively
indistinct actions.
These examples illustrate the fact that coercive power may often be exercised in an
insidious fashion. It does not only take the form of prohibitions or punitive sanctions. As
Foucault has argued, power must be understood as a broader concept if it is to encompass
these diverse techniques of social control.

If power were never anything but repressive, if it never did anything but to say no,
do you really think one would be brought to obey it? What makes power good,
what makes it accepted, is simply the fact that it doesn‟t only weigh on us as a

7
R. Stewart, “The Reformation of American Administrative Law” (1974-75) 88 Harv. L. Rev. 1667 at
1760.
8
Coercive power refers here to the power to shape individual conduct. It does not only denote punitive
sanctions.

Electronic copy available at: http://ssrn.com/abstract=1889243

 force that says no; it also traverses and produces things, it induces pleasure, forms
knowledge, produces discourse.9

Conceiving of power in this more expansive manner highlights the range of ways in
which an individual‟s liberty may potentially be undermined in modern society. It also
underlines the fact that freedom may be threatened by the behaviour of both state and
non-state actors.
These characteristics of modern society have cumulatively homogenising effects.
Through the individual‟s interactions with various coercive bodies and techniques, he is
programmed to engage in certain types of conduct. Particular modes of behaviour are
variously penalised or prioritised. Approved conduct is encouraged and rewarded. The
individual‟s actions are observed and recorded, which further encourages adherence to
the designated norms. This fosters homogeneity which in turn undermines individual
freedom.

“The man who is compelled to live every minute of his life among others and
whose every need, thought, desire, fancy or gratification is subject to public
scrutiny has been deprived of his individuality and human dignity. Such an
individual merges with the mass. His opinions, being public, tend never to be
different; his aspirations, being known, tend always to be conventionally accepted
ones; his feelings, being openly exhibited tend to lose their quality of unique
personal warmth and to become the feelings of every man. Such a being, although
sentient, is fungible; he is not an individual.”10

Privacy claims are an intuitive response to the threat of this sort of socially-directed
homogenisation. By securing scope for individual action, they strive to protect the
individual against this diverse range of conduct-shaping influences. On this analysis,
privacy can be seen as a repackaging of liberal concerns for contemporary times. 18th
century liberal democrats believed that the freedom of the individual was threatened by a
single entity. Therefore, they logically sought to protect it by dealing with that single
danger. Modern theorists, confronted with the threat of coercive power in all its insidious
contemporary forms, cannot do the same. They must therefore re-orient their focus away
from specific threats to individual freedom and towards the protection of that core
interest in itself. It is in that context that arguments for a right to privacy have been
advanced. The advantage of a privacy claim is that it offers potential protection against
all the world. It is not confined in its application to specific transgressors like the state.
“[T]he protection of privacy remains a continual process of negotiating limits … on a
broad front”.11 It accordingly holds out the possibility of protecting individual freedom in
a dynamically coercive environment.
It is important at this point to emphasise that this chapter is not concerned with the
elaboration of a legal right to privacy. That is the purpose of the remainder of this book.

9
M. Foucault, “Truth and Power” in James Faubion ed, Power: Essential Works of Foucault (Penguin,
2002) at 120.
10
E. J. Bloustein, “Privacy as an aspect of human dignity” (1964) 39 N.Y.U.L. Rev. 962 at 1003.
11
D. Lindsay, “An exploration of the conceptual basis of privacy and the implications for the future of
Australian privacy law” (2005) Melbourne U.L.R. 131 at 142.

3
This chapter instead seeks to clarify the concept of a privacy right. For the reasons
outlined above, privacy claims retain an intuitive appeal. Most people would agree that
privacy is important. Most people also, however, would disagree about what privacy
precisely entails. As Post remarked:

“Privacy is a value so complex, so entangled in competing and contradictory

dimensions, so engorged with various and distinct meanings, that I sometimes
despair whether it can be usefully addressed at all.”12

A legal model of privacy protection thus necessarily requires the articulation of a specific
conceptual account of privacy. In the absence of a clearly-identified analytical starting-
point, a legal privacy right would be incomplete, incoherent, and liable to cause
confusion. It is for that reason that this chapter is devoted to a consideration of the more
abstract aspects of the privacy concept.

DEFINING PRIVACY: INITIAL IMPRESSIONS

Privacy is a notoriously elastic and equivocal notion. It has a “protean capacity to be all
things to all lawyers”.13 Its imprecision as a concept has given rise to extensive academic
discussion and debate. A significant proportion of the voluminous literature in this area
is dedicated to the preliminary task of defining what privacy is. These discussions have
generated heat and light but little unanimity. In fact, “the most notable feature of th[e]
literature has been an almost complete absence of agreement concerning both the
definition of privacy and the values said to be promoted by the legal protection of
privacy”.14 Privacy has been defined in different ways and invoked in support of varying,
sometimes even opposing outcomes.

Sceptical Accounts of Privacy

This indeterminacy has led some to question whether privacy as a concept has any
inherent value at all. These sceptical accounts of the right to privacy argue that it is an
empty value or, in slightly less critical form, that it is an idea which is so devoid of
concrete detail that it cannot function as an enforceable legal entitlement.

A reductionist approach
Judith Jarvis Thomson was amongst the most influential members of the „strong‟
sceptical school. She advanced a reductionist view of privacy which posited that it is a
parasitic interest which derives its value from other more fundamental entitlements. She
argued that most privacy claims should be more properly characterised as assertions of
other interests; in particular, property rights and rights in respect of the person.
This is unconvincing. Thomson goes so far in her criticism of the concept of privacy
that she defies all conventional linguistic and cultural intuitions. It simply does not seem
right to say that privacy has no meaning. Thomson‟s argument necessarily implies, for

12
R. Post, “Three concepts of privacy” (2001) Geo. L.J. 2087.
13
T. Gerety, “Redefining Privacy” (1977) 12 Harv. C.R.C.L.L. Rev. 233 at 234.
14
D. Lindsay , loc. cit. at 135.

4
example, that claims of privacy share no conceptual kinship but are instead the offspring
of distinct and separate rights. This does not seem credible. Thomson‟s theory lacks
descriptive accuracy, and accordingly cannot provide a satisfactory account of the
interests engaged by a claim of privacy.

Her argument also obliges her to assert some peculiar personal rights. Because privacy
has no value in her view, an actionable claim to protection must rest on an entirely
independent entitlement. Some of her suggested interests do not seem sufficiently
weighty to support any such claim. Her assertion that bodily integrity encompasses a
right not to be looked at strains credibility. The same is true of her claim that property
rights give rise to a distinct but fortuitously similar right not to have one‟s possessions
looked at. Denying privacy any value forced Thomson to reformulate “[a] general desire,
an interest, or simply a feeling of unease”15 as a right. This, again, fails to convince.

A substitutive approach
Russell Brown has put forward a „weak‟ sceptical theory which has much in common
with Thomson‟s. He does not argue that privacy is a concept without value. He does,
however, feel that the right to privacy is too confused and unwieldy to be effectively
employed by the courts. For him, the various “undisciplined and peremptory competing
claims to privacy‟s meaning leave privacy in disrepute and serious discourse on privacy
in disrepair because no single version can possibly claim common assent”.16 He suggests
that the right to privacy should instead be understood as the product of the legal concept
of exclusivity. Rights to property and bodily integrity protect the individual‟s exclusive
ownership of a particular resource. A privacy claim, for Brown, rests upon the
individual‟s interest in maintaining exclusivity over their body or property.
Brown‟s theory, like Thomson‟s, regards the privacy right as a species of proprietary or
personal interest. He attempts to avoid the criticism of this aspect of her theory as
strained by arguing that the conceptual basis of the claim is unimportant. Exclusivity
supplies the means for identifying the protected interest and securing its vindication. It is
questionable, however, if exclusivity can adequately protect the full range of privacy
interests. It would not, for example, support a claim of privacy in relation to information
which was once disclosed but has now been generally forgotten.17 It is also unclear how it
would apply to claims in relation to the actions of individuals in quasi-public places.
Under Brown‟s theory, the unapproved representation of an individual is treated as an
infringement of his entitlement to preserve exclusivity. Where the representation relates
to information of which others were aware, or to a situation where other were present,
this seems more properly a question of control rather than of exclusivity. Exclusivity can
apply to these situations only if it is strained beyond recognition. This illustrates the fact
that, while exclusivity and privacy may overlap in many areas, they are not identical. An
entitlement to maintain exclusivity may protect privacy in many situations, but they
remain different ideas. Privacy has a specific conceptual value which exclusivity does not
share.

15
B. Rössler (R.D.V Glasgow trans.), The Value of Privacy (Polity, 2005), at 67.
16
Brown, “Rethinking Privacy” (2006) 43 Alberta L. Rev. 589, at 592.
17
See, for example, Sidis. v F-R Publishing Corporation (1940) 113 F. 2d 806; Ouellet v Pigeon (1997)
R.R.A. 1168.

5
 The problem with the sceptical approach of excluding privacy from an account of a
situation which would typically be understood to engage a privacy interest is that it
removes a necessary element of the analytical calculus. We instinctively conceive of such
situations as involving privacy claims. To discount privacy entirely, or to replace it with a
different value, is to approach this type of issue in a way which cannot accord with the
widespread cultural, linguistic or conceptual understanding of it. For a legal regime to
function, it cannot work in this way.

Intuitionist Accounts of Privacy

From an intuitionist perspective, privacy has meaning and value. To assert a privacy
claim is not to give voice to a right not to be looked at, or to seek to preserve proprietary
exclusivity. It is a more fundamental claim which draws on deeper notions of individual
personhood. The difficulty lies with the articulation of these deeper ideas. Intuitionist
accounts retain a universal resonance but they lack the necessary precision to be legally
enforceable. The “fuzziness” inherent in an intuitionist approach means that “it is
difficult to organise intuitions about privacy claims into guiding principles”.18
Intuitionism suggests the existence of a consensus that privacy has value but it is unable
to authoritatively determine what that value practically entails. It belies sceptical accounts
of privacy but cannot itself found a workable privacy regime. For this, a useable
definition is required. The next section will therefore examine a selection of the
definitions of privacy that have been discussed in the literature in an effort to develop just
such a definition.

(i) The right to be let alone – Although this definition was first expressed by Judge
Cooley,19 it is generally associated with the seminal American work of Warren and
Brandeis.20 Their article in the Harvard Law Review, which was reputedly written in
response to newspaper coverage of the wedding of Warren‟s sister, is often regarded as
the academic progenitor of American privacy law.21 This definition has been particularly
influential in the constitutional sphere, where it has been invoked in support of
individual‟s claims to freedom from governmental intervention. In this context, the right
to privacy preserved the freedom of the individual by securing scope for independent
decision-making. It operates to presumptively preclude the state from regulating
individual actions. The right to be let alone – for Harlan J. “the most comprehensive of
rights and the right most valued by civilised men”22 – was accordingly interpreted to
prohibit state interference with of a married couples‟ use of contraceptives23 or of a
woman‟s decision to undergo an abortion.24 The Supreme Court observed that:

18
R. A. Cass, “Privacy and Legal Rights” (1991) 41 Case W. Res. 867, at 868.
19
T. Cooley, A Treatise on the Law of Torts (2nd ed., 1888).
20
S. Warren & L. Brandeis, “The Right to Privacy” (1890) 4 Harv. L. Rev. 193.
21
The article has been extensively discussed. See, for example, H. Kalven, “ Privacy in Tort Law: Were
Warren and Brandeis Wrong?” (1966) 31 Law and Contemporary Problems 326; Kramer, “The Birth of
Privacy Law: A Century since Warren and Brandeis” (1990) 39 Cath. Univ. L. Rev. 703; R. Turkington,
“Legacy of the Warren and Brandeis Article” (1990) 10 N. Ill. U.L. Rev. 479.
22
Poe v Ullman 367 U.S. 497 (1961) at 550.
23
Griswold v Connecticut 381 U.S. 479 (1965).
24
Roe v Wade 410 U.S. 113 (1973).

6
 “If the right to privacy means anything, it is the right of the individual … to be
free from unwarranted governmental intrusion into matters so fundamentally
affecting a person as the decision whether the bear or beget a child.”25

Privacy as the right to be let alone made an appearance in Ireland in cases like McGee v
Attorney General26 and Norris v Attorney General .27
As has already been noted in this chapter, a right to privacy which applies solely
against the state does not offer the individual adequate protection. It is too narrow to
capture the potential range of privacy infringement. Privacy interests may be undermined
by non-public actors. Yet the right to be let alone has typically been conceived as a
constraint on state behaviour. It is noticeable that Harlan J. described it as a right which is
“conferred, as against the government”.28 This is a significant weakness in this
conception of the right.
The right to be let alone need not, of course, be so confined. It is formulated in so broad
a fashion that it is capable, in its own terms, of applying against all the world. The
sweeping scope of this definition means, however, that it is “vacuous”29 and thus
functionally inadequate. It cannot be coherently employed in practice. An individual‟s
conduct always has the potential to impact on others. One person‟s exercise of his
freedom may impinge upon the freedom of others. For a socially-situated individual,
freedom tout court is an impossibly chimeric ideal. It is thus unrealistic (and socially
dysfunctional) to define privacy in terms of an absolute entitlement to be let alone.
In its phrasing, however, the right to be let alone makes just such an absolutist claim.
The definition supplies no criteria for distinguishing between competing claims in
situations where the actions of individuals or organisations come into conflict. “Being let
alone does not inform us about the matters in which we should be let alone”. 30 The
definition is too bald to be useful. It presents privacy as a licence to act in unspecified
ways. “Notwithstanding [its] characterisation as a privacy righ[t], these really are rights
to other sorts of liberty.”31 This definition is more correctly an assertion of liberty per se
than one of privacy. Its conception of liberty is, however, ill-defined and uninhibited. A
theory of liberty as licence is too vague and atomistic to be of any practical utility. It is an
“indiscriminate concept”.32 Instead of defining privacy, it describes an example of it. The
right to be let alone is thus inadequate as a basis for a privacy regime.

(ii) Inaccessibility – Commentators like Gavison,33 Allen34 and Moreham35 have defined
privacy in terms of individual‟s inaccessibility. This conception regards the state of
25
Eisenstadt v Baird 405 U.S. 438 (1972) at 453.
26
[1974] I.R. 284.
27
[1984] I.R. 36.
28
Poe v Ullman 367 U.S. 497 (1961) at 550
29
E. Barendt, “Privacy as a Constitutional Right and Value” in P. Birks ed., Privacy and Loyalty
(Clarendon, 1997).
30
Daniel Solove, “Conceptualising Privacy” (2002) 90 Cal. L. Rev. 1087 at 1102.
31
R. Post, “Privacy and Legal Rights” (1991) 41 Case W. Res. 867 at 876.
32
R. Dworkin, Taking Rights Seriously (Harv.ard University Press, 1971) at 262.
33
R. Gavison, “Privacy and the limits of law” (1980) 83 Yale L.J. 421.
34
A. Allen, Uneasy Access: Privacy for Women in a Free Society (Rowan &Littlefield, 1988).
35
N. Moreham, “Privacy in the Common Law: A Doctrinal and Theoretical Analysis” (2005) 121 L.Q.R.
628.

7
solitude as the central case of privacy protection. When an individual is out of reach of all
external actors, they are said to be enjoying “perfect privacy”. 36 There are echoes of this
approach in Peart J.‟s judgment in Atherton v Director of Public Prosecutions37 in which
he held that an applicant was unable to sustain a privacy claim in respect of video
surveillance of an area of his home and garden which was visible from the public street.
One difficulty with the notion of privacy as inaccessibility is that it may not
persuasively apply to all situations. Being stranded on a desert island or being detained in
solitary confinement are states of inaccessible solitude which would not normally be
described as private. It is for this reason that Moreham introduces the individual‟s
intention into her theory as a necessary ingredient of privacy. She advances the more
refined formulation of privacy as a state of “desired inaccess”.38
A more profound problem with this definition of privacy is that it treats a person‟s
privacy as an all-or-nothing interest. It envisages privacy as an original state of secret
inaccessibility. It can either be preserved in this pristine state or destroyed. Once access is
allowed, the privacy interest is lost. This sort of brightline approach cannot take account
of the nuances of social existence. “Our everyday lives are in reality a constant trade-off
between human interaction and social life on the one hand, and the maintenance of a
reasonable degree – not an absolute state – of privacy on the other.”39 To define privacy
in terms of secrecy or inaccessibility does not, for example, permit the possibility of
retaining a privacy claim in relation to information shared as part of an intimate
relationship. It would not support the notion that information which was once made
public may subsequently become private over time. It cannot distinguish between private
information being access on a familial, local, national or international level. It is simply
too blunt to adequately reflect the full range of possible privacy claims.
This can be attributed to the conception‟s focus on individual solitude. A person in a
state of solitude may also be enjoying a state of privacy but it does not follow that the two
states are the same. Privacy is, in fact, a relational rather than a solipsistic concept. To be
private, a matter must be private against another party. Solitude, on the other hand, is a
self-regarding and self-supporting concept. Whereas privacy presumes the existence of
others, no other is needed to be alone. As an idea which is defined by reference to others
rather than to the self, privacy therefore presupposes a basic sociability. Its objective is
the protection of the individual but the focus of its operations is that individual‟s social
acts. As a value, it has real meaning only in the context of an individual‟s social
intercourse. Feldman has commented that “privacy can usefully be considered to have
more to do with social … action and interaction than with the behaviour of hermetically
isolated individuals”.40 This reflects the fact that “privacy is a socially created need”.41
Without society, there would be no need for privacy.
Conceptions of privacy as inaccessibility are premised on the protection of the wrong
interest. Privacy and inaccessibility overlap but they are not the same. Inaccessibility

36
R. Gavison, loc. cit. at 428.
37
[2006]1 I.R. 245.
38
This is considered in greater detail below.
39
G. Phillipson & H. Fenwick, “Breach of Confidence as a Privacy Remedy in the Human Rights Era”
(2000) 63 M.L.R. 660 at 675.
40
D. Feldman, “Privacy-related rights: their social value” in P. Birks ed., Privacy and Loyalty (Clarendon,
1997), at 49.
41
B. Moore, Privacy: Studies in Social and Cultural History (Sharpe, 1984), at 73.

8
preserves the individual‟s entitlement to be alone. Privacy is concerned with far more
complex and multi-faceted questions of social existence. This explains why a theory of
privacy as inaccessibility is too narrow to properly assess the issues that may arise in the
penumbra between the fully secret and the openly public. A richer and more flexible
conception of privacy is required.

(iii) ‘Natural’ privacy – This understanding of privacy holds that there are specific
„natural‟ zones within which privacy interests arise and ought to be protected. These
natural areas are usually identified as the home and the body.
The difficulty with these spatial theories is that they are too narrow. They conceive of
privacy in a purely physical fashion. They neglect the individual‟s interest in preventing
the disclosure of information about him unless his property or person are at issue. They
would deny the possibility that conduct which occurs outside one of these zones might
give rise to a plausible privacy claim. Like the proponents of privacy as inaccessibility,
advocates of „natural‟ privacy are unable to satisfactorily deal with more nuanced
potential privacy infringements.

(iv) Pragmatic privacy – Unlike the other examples considered in this section, Solove‟s
so-called pragmatic theory does not attempt to provide a definition of privacy itself. 42 It
rather proceeds from the assumption that privacy cannot be comprehensively defined.
Unlike Thomson‟s theory, however, Solove does accept that privacy has value as a
distinct principle. He proposes therefore to concentrate on identifying and defining
possible privacy intrusions. His categories of activity that can potentially harm a person‟s
privacy are:

a. Information collection.
b. Information processing.
c. Information dissemination.
d. Invasions of people‟s private affairs via „intrusion‟ or „decisional interference‟.

Solove eschews the privacy grail of a comprehensive definition of the concept, preferring
instead to develop a workable model of privacy protection. His work usefully identifies
the various ways in which privacy can potentially be infringed. It encourages the
enunciation of more coherent privacy claims by concentrating attention on the
appropriate offending activity.
As an independent theory of privacy, however, Solove‟s model is logically circular.
Identifying instances of privacy harm requires some pre-existing idea of what privacy
entails. Privacy must be known if its infringement is to be recognised. Solove‟s pragmatic
model depends on an unarticulated conception of privacy. By failing to provide a
coherent account of privacy, it thus suffers from the same weaknesses as the theories
already discussed in this section.

Conclusion
It is clear that defining privacy is no easy task. The efforts considered above are either
too broad to be workable or too narrow to encapsulate the true richness of the right to
42
See D. Solove, “A taxonomy of privacy” (2006) 154 U. Pa. L. Rev. 477.

9
privacy. Privacy is intuitively coherent but definitionally elusive. Intuitionist efforts to
sum the concept up in a single sentence are unlikely to succeed. A fuller appreciation of
privacy in all its various forms is required. With that in mind, the next section of this
chapter will move away from an examination of these initial impressions of privacy
towards a consideration instead of the values which underlie the concept. An
understanding of the interests which the protection of privacy purports to serve is likely
to assist in clarifying and delimiting the appropriate scope of a privacy claim. If we can
understand the reasons why privacy is protected, we may be in a better position to devise
a legal regime which is capable of achieving this end.

WHY VALUE PRIVACY?

The protection of privacy is justified in the literature as both an individual and a social
good. Craig identifies six reasons for the protection of privacy:43

(i) Refuge: It allows the individual to retreat from the pressures of public scrutiny
and social norms.44

(ii) Freedom: Privacy prevents interference in a person‟s acts.45

(iii) Autonomy: It promotes autonomy by encouraging the individual to make his

own choices.46

(iv) Creativity: By protecting the individual against conformist pressures, it fosters

creative experimentation, which leads to social diversity.47

(v) Mental health: Privacy has been linked to individual mental health.48

(vi) Intimacy: Privacy is a necessary condition for the creation of relationships of

trust and confidence.49

These rationales for the protection of privacy illustrate the concept‟s multi-dimensional
character. They are not all, however, convincing of themselves. Reiman and Fried‟s work
on intimacy is a good example of this. In its own terms, this justification identifies an
important and previously overlooked reason for protecting privacy. This rationale

43
J. Craig, “Invasion of Privacy and Charter Values” (1997) 42 McGill L.J. 355.
44
S. Warren & L. Brandeis, loc. cit.
45
Griswold v Connecticut 381 U.S. 479 (1965); Roe v Wade 410 U.S. 113 (1973); McGee v A.G. [1974]
I.R. 284.
46
B. Rössler, op. cit.; D. Feldman, loc. cit.
47
R. Gavison, loc. cit.
48
S. Jourard, “Some Psychological Aspects of Privacy” (1966) 31 Law and Contemporary Problems 307.
49
J. Rachels, “Why Privacy is Important” (1975) 4 Phil. & Pub. Aff. 323; J. H. Reiman, “Privacy,
Intimacy, and Personhood” (1976) 6 Phil. & Pub. Aff. 26; A. F. Westin, Privacy and Freedom (Atheneum,
1967).

10
usefully underlines the relational nature of the right to privacy and demonstrates its
benefit for both individuals and society. It does not, however, exhaust its scope. Privacy
does not only arise in intimate relationships. Nor is it only useful in that context. Privacy
may be important to the creation and maintenance of non-intimate relationships with
employers or distant acquaintances. These associations may not be as important to an
individual as those he shares with his closest friends or family but they are socially
significant nonetheless. A concept of privacy must involve more than mere intimacy.

Consequentialist theories
Consequentialist or instrumentalist theories of privacy run the risk of concentrating on a
single rationale to the detriment of other equally significant aspects of the right. More
fundamentally, they are also susceptible to the objection that, as instrumentalist accounts,
they will not offer adequate protection against countervailing considerations of collective
interest. An instrumentalist theory suffers from the familiar utilitarian flaw of failing to
accord sufficient weight to the interests of the individual. It protects privacy for what it
can achieve rather than as a value deserving of protection in its own right. As a result,
privacy will not be protected where it does not directly assist in the attainment of these
objectives, or where it comes into conflict with the pursuit of a greater social priority.
This has generally been the fate of privacy claims in the American courts where they
have had to defer to the constitutional alpha-value of 1st Amendment free speech. The
American understanding of privacy is “more welfare-consequentialist”.50 It thus tolerates
infringements of privacy where they may lead to an overall increase in welfare. Privacy
interests were insufficient, for example, to justify upholding a law that the evidence of
minors in relation to sex offences should always be heard in private.51 That law was
struck down on the basis of the court‟s reasoning that public scrutiny of court
proceedings was likely to be of general benefit. Given the assumption in American 1st
Amendment jurisprudence that freedom of expression is, in itself, a social good, privacy
claimants inevitable find it difficult to prevail. “Privacy law in the United States delivers
far less than it promises, because it resolves virtually all … conflicts in favour of
information, candour and free speech.”52

Deontological theories
On the contrary, deontological conceptions of privacy treat it as a value which is
inherently deserving of protection. This type of theory tends to characterise it as a
derivative of the innate human values of dignity and autonomy. They thus retain a
purposive element whilst avoiding the perils of instrumentalist balancing. Without
privacy, these fundamental human values would not be adequately respected. The
purpose of privacy protection is not, on this analysis, to assist in the achievement of a
specific outcome. It is rather the input-oriented purpose of securing for the individual
those values that are inherent to his existence as a human person. “[P]rivacy has the
function of permitting and protecting an autonomous life”.53

50
M. Lindsay, loc. cit. at 177.
51
Globe Newspaper Co. v Superior Court 457 U.S. 596 (1982).
52
D. A. Anderson, “The Failure of American Privacy Law” in B. Markesinis ed., Protecting Privacy (OUP,
1999), at 140.
53
B. Rössler, op. cit. at 1.

11
Autonomy
Autonomy is a fundamental notion in modern society. It denotes the entitlement of each
individual to live a life of their own choosing. For Rössler, the possibility for the
individual of “living their life in accordance with their own particular ideas of the
individual good …. is the spirit and origin of modern societies”. 54 It is the guiding notion
of Kantian and Millsian conceptions of social existence. As Mill explained it, “[t]he only
freedom that deserves the name, is that of pursuing our own good in our own way”.55
The autonomous individual is the antithesis of Bloustein‟s homogenised non-human.
He defines himself as a distinct and autonomous entity by his independent actions and
decisions. He is self-determining, self-governing and accordingly self-defining. This
concept of the autonomous individual is a cornerstone of both liberal democratic and
communitarian theories of the state. Liberal democracy aims to facilitate individual
freedom to the greatest extent compatible with an organised social structure. Its dignitary
concern to ensure equal respect for the individual manifests itself in a desire to secure
liberty for each individual to make their own decisions without outside interference. This
individual freedom in turn generates diversity and pluralism which benefits society as a
whole. The autonomy of the individual is thus an article of faith for liberal democracy.
Communitarian and republican theories for their part emphasise the importance of self-
government. In the Madisonian or Machiavellian republic, self-determined political
action was a civic duty. Participatory citizenship is a necessary feature of this sort of
system. Without individual self-determination, there cannot be communal self-
government.
Given the influence of both liberal democracy and communitarianism on the Irish
Constitution, it seems plausible to suggest, as Denham J. did in Re Ward of Court (No.
2),56 that autonomy is a value with particular resonance for Irish law.

The Characteristics of Autonomy

To envisage the individual as autonomous is to assume that he has certain characteristics.
An autonomous individual is one who makes his own choices. He must therefore have his
own will. Further, autonomy requires that he has a range of options open to him and that
he exercises a choice between them.
For the individual to be truly self-governing, this power of choice cannot be arbitrarily
exercised. Arbitrariness has a dehumanising effect by denying the presence of individual
reason. Autonomy thus also presupposed a basic level of human reason. Any choices
made need no be objectively rational ones. After all, the power to undertake a course of
action which others regard as foolhardy or unwise is one of the classic examples of
autonomous decision-making. The key requirement, however, is that it be a decision
which is made by the individual as part of a reasoned effort to live his own life in his own
way.
This process of self-reasoning presupposes certain additional individual characteristics.
First of all, the individual must have a self-identity if they are to be able to further the
project of living their own life in their own way. Secondly, the individual must have the

54
B. Rössler, op. cit. at 43.
55
J.S. Mill, On Liberty (Penguin ed., 1982), at 72.
56
[1996] 2 I.R. 79.

12
capacity to question and evaluate that self-identity if it is to truly be said to be of their
own design. In a similar vein, the individual must, thirdly, have the ability and the
opportunity to choose between courses of action which affect that self-identity. Finally,
the individual must also have to ability to assess the consequences of the making of that
choice for his self-identity. Only through this process of rational self-evaluation and self-
determination can an individual be said to be truly self-governing, and thus autonomous.

Autonomy as a Social Value

Lindsay has identified a tension between the “view that individuals are radically self-
determining [and the] understanding that individuals are socially constructed”. 57 This
conflict is based, however, on a conception of an individual‟s autonomy as an
independence from all external influences. Autonomy need not be so defined. The
process of self-government is, for a socially-situated individual, not an entirely self-
regarding one. Taylor argues that individual identity is the product of a dialogical
process58, “a conversational engagement with one‟s past and with others”. 59 The
development of a self-identity requires a dialogue between the individual another party.
This may be internalised as part of the individual‟s ongoing self-evaluation. The
dialogical process may have external elements as well. It was noted above how autonomy
assumes that the individual is capable of making choices and of assessing their
implications for his image of the self. Dialogue with others is one of the ways in which
this evaluative process occurs. It presents the individual with an opportunity to present
his own social identity and to check and evaluate his choices. Developing a social
identity shapes the individual‟s self-identity. Further, by gauging the reactions and
responses of those with whom an individual interacts, that individual is able to assess
how they are perceived and how the choices that they make colour that perception. In this
way, they are able to calibrate their choices to better give effect to their autonomous
project of living their own life in accordance with their own conception of the good.
The individual‟s ability to engage in this dialogical process depends on a complex
network of social mores and expectations. These affect the way in which the individual
and his dialogical partners interact, and react to new developments. The veracity of the
self-evaluative process thus depends upon the authenticity of all who are engaged in it.
The others, upon whose reactions the individual relies, must be acting authentically if his
own estimations of his social self-identity and of the implications of his self-determined
act are themselves to be authentic.
Taylor and Rössler have both emphasised the importance of authenticity in their work.
For them, it is a prerequisite for autonomy. Without authenticity, the individual is
deceived in their self-evaluation, their self-determination and thus, in their self-identity.
They are denied the possibility of developing their own autonomous way of life. This is
the case even if they never realise that they have been deceived. The opportunity to
devise and pursue their own approach to the living of their own life has been taken away
from them.

57
D. Lindsay, loc. cit. at 149.
58
C. Taylor, The Ethics of Authenticity (Harvard University Press, 1992).
59
B. Murchison, “Revisiting the American Public Disclosure Tort” in A. T. Kenyon & M. Richardson eds.,
New Dimensions in Privacy Law: International and Comparative Perspectives (Cambridge University
Press, 2006), at 51.

13
 Rössler illustrates this point by reference to Uwe Johnson‟s story „Sketch of a
Casualty‟. The story‟s protagonist discovers that his wife of 20 years has been cheating
on him with another man for all that time. Rössler discusses how this revelation impacts
upon the husband‟s sense of himself.

“[He] comes to see his life as devalued, his feelings as inauthentic, and his actions
as not his own … [H]is whole life strikes him as failed because in the most
private, most intimate of his relation he has been betrayed …. Everything about
his life in those twenty years has become untrue. „Like photos, the stocks of his
memory had been stamped with the words: Untrue. False. Poisoned. Devalued.
Invalid.‟ [His] sense of all his past experiences, his entire past life are devalued
and untrue comes not only from having led a different life to the one he believed
he was leading but also from thus being (or having been) a different person from
the one he believed he was.”60

This underlines the importance of authentic inter-personal intercourse to an individual‟s

self-identity. The sentiments of betrayal and lost opportunity which the person who
discovers this inauthenticity feels illustrates the nature of the infringement in all
situations of deception. If we are deceived in our social relations, we are deceived in
ourselves.
It is important to reiterate the social aspect of this conception of autonomy. The
emphasis on dialogical self-evaluation underlines the fact that this theory does not present
the individual as a solitary entity. Autonomy here does not denote the moral autonomy of
the individual. Autonomy in this context connotes personal autonomy in the sense of the
individual‟s capacity for individual self-government. It does not require that ability to be
used in a way which accords with moral principles. It does not, therefore, demand total
independence from all external influences. The key consideration is that the individual
makes their own choice – whatever that might be – as part of their effort to create a life of
their own choosing.
Self-identity is a relational process which has internal and external elements. The
individual has an autonomous identity for himself and for others (they need not be the
same). This latter social identity is a part of the individual‟s own personal identity. It is an
image of his own creation, which he has developed as part of his efforts to live his own
life in his own way. It is shaped by his personal choices and also by how it is socially
received. This can in turn feed back into his own process of self-identification and self-
evaluation. Control of an individual‟s social identity is thus a necessary attribute of his
dialogical self-identity.

“Recognising an inviolable sphere of personhood … must take into account that

society to a great extent defines its individual members …. Public dissemination
about private matters directly affects how society views an individual, and may
affect that individual‟s role in society. It shapes the individual‟s social identity
and thus affects the individual‟s actual identity.”61

60
B. Rössler, op. cit. at 137-138, quoting U. Johnson, Skizze eines Verunglückten (1981).
61
F. S. Chlapowski, “The Constitutional Protection of Informational Privacy” (1991) 71 Boston University
Law Review 133 at 153-154.

14
This explains why the exposure of the individual to social embarrassment is understood
as an unwelcome and possibly actionable intrusion on his self-identity. It affects the
perception of others and undermines the individual‟s power to create his own identity.
There would be no detriment if the individual was defined solely by reference to his
solitary sense of self. That we understand the disclosure of private information as an
intrusive act underlines the relationship between social identity and individual autonomy.

“A self-constructed social network is one of the prime expressions of individual

personality in our associational world. Central to this expression of autonomy is
the capacity of the individual to create different levels of relationship – to become
more or less friendly, more or less intimate with different people. Were we to be
denied this ability, we would be deprived of one of the most effective avenues of
individual expression.”62

Privacy and Autonomy

Privacy supports this understanding of autonomy in a number of ways. These are
considered below. The first two relate to the individual‟s internal dialogue whereas the
final three involve external aspects of the dialogical process.

(i) Internal authenticity – The provision of private place supports the authenticity of an
individual‟s self-determination. It allows the individual a space away from prying eyes in
which he can be „himself‟. This naturally prompts the individual to reflect on what he is
like when removed from all others. This suggests the existence of a sense of self. The
absence of external pressures encourages the individual to develop and maintain a „true‟
sense of himself. It fosters a sense of being alone in a place where one can be oneself.
One can be authentic. By promoting these notions of an authentic self, privacy (in the
form of a private space) supports the development of a self-identity.

(ii) Individual experimentation – The availability of a place of refuge also allows for
individual experimentation. This facilitates the self-evaluative process. It permits the
individual to engage in activities which he would not undertake in public. This provides
an opportunity to test self-identity by questioning an individual‟s prevailing self-image
and trying out new potential attributes of the self. The individual is able to explore and
evaluate his internal self without imperilling his social identity. A private space thus
supports the individual‟s capacity for self-evaluation and self-presentation.

(iii) Access to the self – By regulating access to the individual, privacy permits the
creation of a social identity. The individual retains a power of self-presentation. This is an
important attribute of autonomy in a social world. It allows the individual to mark
himself out as a separate, self-governed entity. This also supports self-government by
allowing the individual to develop a diverse range of social relationships. Maintaining a
variety of relationships requires reflection on the social identity which the individual

62
E. Carolan, “Stars of Citizen CCTV: Video Surveillance and the Right to Privacy in Public Places”
(2006) 28 D.U.L.J. 326 at 338.

15
wants to present to different people. This again encourages both self-identity and self-
determination.

(iv) Intimacy – This chapter has already considered the argument that privacy supports
the creation of intimate relationships. This type of relationship plays an important role in
an individual‟s self-determination. It is to his intimates that a person will usually turn for
direction on the most difficult aspects of his self-evaluative process. An individual will
look to others for guidance as to the veracity or otherwise of his choices and intentions.
The views of those closest to him will often have the most significant influence. It is in
the context of these closest, most intimate relationships that many of an individual‟s most
important self-determined acts may be suggested, debated and assessed. By creating the
conditions for such intimacy, privacy further supports the autonomy of the individual.

(v) External authenticity – It is an essential feature of a socialised dialogue that the

actions of others are authentic. An individual‟s regulation of his social relationships
allows him to control the information which others have about him. He accordingly has
expectations about other people‟s perceptions of him. He relies on these expectations
when engaging with others, gauging their reactions by reference to what he understands
to be their image of him. If these others have discovered something which has altered
their view of him, their reactions will be inauthentic. By relying on them as part of his
decision-making process, the individual‟s own self-determination is also rendered
inauthentic. This undermines his autonomy by denying him the possibility of acting in an
authentic way. By preserving the individual‟s control of his self-presentation, privacy
thus secures the authenticity of the external evaluative process and supports the
individual‟s autonomy. As the European Court of Human Rights observed in Pretty v
UK, the concept of private life must:

“[P]rotec[t] a right to personal development, and the right to establish and develop
relationships with other human beings and the outside world …. [T]he Court
considers that the notion of personal autonomy is an important principle
underlying the interpretation of [Article 8‟s] guarantees.”63

Privacy as a social value

This overview of the relationship between privacy and autonomy highlights a number of
facts. First of all, it makes it clear that control is a necessary element of privacy. For the
potential benefits of privacy protection to be secured, the individual‟s power to control
the various aspects of self-governance must be assured.
Secondly, this conception of privacy as a corollary of autonomy clearly envisages it as
a socialised and relational interest. Echoing Aristotle‟s famous truism,64 this image of
man as a social animal underpins both Rössler and Feldman‟s accounts of privacy. For
them, privacy is a necessary condition for human flourishing because of the way in which
it supports the individual‟s social existence. “[T]he most important aspects of privacy are

63
(2002) 35 EHRR 1 at para. 61.
64
Aristotle, The Politics, I. ii. 9. Politikon zoon is often translated as political animal. However, Aristotle
was making the argument that man has an inherent need for social interaction, not political discussion. The
less common translation is used here to avoid confusion.

16
those which facilitate constructive social action and intercourse”.65 It is a right which,
when conceived of in this way, does not properly belong to the Anglo-American tradition
of negative civil liberties. It is not an immunity which guarantees freedom of action in a
limited sphere. Autonomy, on this view, is not secured by the absence of government or
external intervention. It is instead supported by the state‟s active involvement in the
protection of privacy. This creates the conditions for autonomy. In its emphasis on state
action, this understanding of privacy owes more to traditional European conceptions of
rights.

“This [European] vision of governance generally regards the state as the

necessary player to frame the social community in which individuals develop ….
Citizen autonomy, in this view, effectively depends on a backdrop of legal
rights.”66

This echoes the theories of those like Raz67 and Rawls68 who see social co-ordination as a
necessary condition for individual freedom. Liberty depends upon the actions of others. It
is accordingly better protected in a regulated and socialised existence than in a Hobbesian
state of nature.
For this reason, the socialised conception of privacy is preferable. It more accurately
encapsulates the reality of contemporary life. It encourages social cohesion by treating
individual freedom and social regulation as complementary rather than opposing
interests. In so doing, it ensures greater scope for the exercise of individual freedom than
a system based on the immunity from government action of limited areas of activity. It
supports the processes of self-identification, self-evaluation and self-determination and,
in so doing, allows for self-governed “individuation”69 in the social sphere. This avoids
the dehumanised homogeneity of Bloustein‟s vision and secures instead the individual‟s
position as the autonomous entity of Kantian theory. Privacy is thus a necessary condition
for individual autonomy. This is the reason for its protection. As Rössler has explained:

“[T]he concept of privacy demarcates for the individual realms or dimensions that
he needs in order to be able to enjoy the individual freedom exacted and legally
safeguarded in modern societies …. [S]uch realms or dimensions of privacy
substantialize the liberties that are secured because the mere securing of freedom
… does not in itself necessarily entail that the conditions are secured for us to be
able to enjoy these liberties as we really want to.”70

65
D. Feldman, loc. cit. at 40.
66
J. Reidenberg, “Resolving conflicting international data privacy rules in cyberspace” (2000) 52 Stanford
L. Rev. 1315 at 1347.
67
J. Raz, The Morality of Freedom (Clarendon, 1986).
68
See, for example, J. Rawls, A Theory of Justice (revised ed., Oxford University Press, 1999); Justice as
Fairness: A Restatement (Belknap, 2001).
69
J. Kahn, “Privacy as a Legal Principle of Identity Maintenance” (2003) 33 Seton Hall L. Rev. 371 at 378.
70
B. Rössler, loc. cit. at 72.

17
With the protection of privacy, the conditions for the autonomous enjoyment of these
freedoms are secured. It thus “derives its weight and importance from its capacity to
foster the conditions for a wide range of other aspects of human flourishing”.71

Liberal, democratic and communitarian theories of the state all emphasise the importance
of individual autonomy. It encourages diversity, creativity, rationality and choice A right
to privacy accordingly benefits both the individual and the society in which he lives.

“[Protecting privacy] is necessary if an individual is to lead an autonomous,

independent life, enjoy mental happiness, develop a variety of diverse
interpersonal relationships, formulate unique ideas, opinions, beliefs and ways-of-
living, and participate in a democratic, pluralistic society. The importance of
privacy to the individual and society certainly justifies the conclusion that it is a
fundamental social value, and should be vigorously protected in law. Each
intrusion upon private life is demeaning not only to the dignity and spirit of the
individual, but also to the integrity of the society of which the individual is
part.”72

It was for this reason that Lords Rodger and Brown recently asserted in R (Countryside
Alliance) v Attorney General73 that the concept of private life should include social
activities as part of Article 8‟s protection of an individual‟s personal development.

“Article 8‟s protection is recognised to extend to a right to identity and to personal

development and … the notion of personal autonomy. It encompasses almost any
aspect of a person‟s sexuality and a good deal else that is clearly personal. But
why should respect for private life not encompass also wider concepts of self-
fulfilment? …. Many people in a real sense live for some particular activity,
whether their profession or their recreation. In a real sense it defines them. Often
it provides them with their feelings of identity, self-esteem and position in the
community.” 74

DIMENSIONS OF PRIVACY

The insight that privacy is a necessary condition of individual autonomy is an insufficient

basis for a workable legal privacy regime. It explains why privacy is protected but not
how this ought to be done. Privacy claims share a common concern for the individual‟s
autonomy but they can arise in many different contexts. This has led most writers on
privacy to sub-divide the concept into more manageable categories. By grouping similar
claims together under a specific sub-heading, they are thereby distinguished from other
dimensions of privacy that might raise different issues and require to be dealt with in
different ways. As Solove‟s discussion of privacy harms demonstrated, categorisation can
encourage more analytical clarity and rigour. This sort of coherentist classification

71
D. Feldman, loc. cit. at 21.
72
J. Craig, loc. cit. at 361.
73
[2007] UKHL 52.
74
ibid. at para. 139

18
supports the development of a workable regime by allowing judges and jurists to
effectively engage with the concept of privacy. It simplifies the concept by concretising it
but advances the system‟s treatment of it by facilitating the adoption of an appropriately
multi-dimensional approach. This allows privacy claims to be properly contextualised.
For the purposes of this book, the different dimensions of privacy will be classified
according to the subject-matter of the claim. This is a user-friendly approach because the
subject-matter is usually relatively easy to identify. A claimant will typically assert a
right of control over something. By identifying that something, the claimant will also
thereby determine the character of their claim.

The categories are as follows:75

(i) Decisional privacy – This relates to the individual‟s entitlement to make their own
decisions. This is clearly an aspect of individual self-determination. In terms of its
efficacy as an operational principle, however, it suffers from the same over-broad
character as the right to be let alone. In its traditional form, it restricts the actions of the
state. In any stronger form, its assertion of uninhibited autonomy is socially destructive.
To be workable, it requires the incorporation into it of additional criteria which would
equip the court to distinguish between competing liberty claims. In the U.S., for example,
the Supreme Court has upheld decisional privacy where it relates to a fundamental
interest. This obviously requires, however, the articulation of a distinct theory of what
constitutes a fundamental interest. This book will therefore not deal with claims of
decisional privacy. It is questionable if these are in fact species of privacy interest at all.
Even if they are, however, this dimension of privacy is internally incomplete. It is
unusable in the absence of a broader political theory about social organisation and
individual autonomy. Devising such a wide-ranging doctrine is outside the scope of this
work.

(ii) Spatial privacy – This category encompasses claims of privacy in relation to a

particular space. Rössler describes this as territorial privacy but the term spatial is
preferred here as it more clearly incorporates claims in respect of the human body. This
category can be further sub-divided into:

a. Territorial privacy – This covers claims in relation to a specific geographical

space.

b. Personal privacy – This comprises claims in respect of an individual‟s own

personal space. These will normally relate to the individual‟s own body.

75
The categories used here are similar to Rössler‟s suggested treatment of privacy as comprised of
decisional privacy, local privacy and informational privacy and La Forest J.‟s proposal in R. v Dyment
(1988) 55 D.L.R. (4th) 503 that privacy claims attached to zones of territorial, personal and informational
privacy. They are also similar to Gallagher‟s discussion of the right to privacy in terms of territory,
confidentiality and decision making. See P. Gallagher, “Tribunals and the Erosion of the Right to Privacy”
(1999) 4 Bar Review 406.

19
(iii) Informational privacy – This category is regarded by many authors as the archetypal
privacy claim. It protects the individual‟s entitlement to control the disclosure of
information about his self. This dimension of privacy is engaged in any situation in which
an individual claims that others, be they specified or otherwise, have accessed
information about him which they ought not to have had.

PRIVACY AND CONTROL

Privacy as a Claim of Control

These dimensions of the right to privacy may all be formulated as claims to control.
Autonomy is secured by the individual‟s regulation of access to his territory, his person,
and his private information. A person‟s privacy depends upon his power to regulate this
access. Control is accordingly the organising principle of an effective privacy rights
regime. It is unsurprising, therefore, that control features prominently in the work of most
authors in this area.

Criticisms of the Concept of Privacy as Control

Defining privacy in terms of the individual‟s control has, however, been recently
criticised by Nicole Moreham. She suggests that this approach to privacy is inadequate in
two ways.
First, she argues that a control principle cannot distinguish between threats to privacy
and actual infringements of it. She uses the example of a computer hacker to illustrate her
point. The hacker has the ability to access information on a person‟s computer as he
pleases. Even if he never actually accesses that information, Moreham contends that the
person no longer can be said to have control over it. It is liable to be accessed against
their wishes at any time. Until that is done, however, we would normally still characterise
the information as private. Defining privacy in terms of control is thus misleading.
Furthermore, it also confuses the question of when an infringement of privacy has
occurred, thereby making it more difficult to determine when a legally actionable interest
should arise.
Moreham‟s second criticism is that a control-based definition deprives privacy of much
of its value. She argues that equating privacy with control inevitably prevents the
individual from exercising the right in a meaningful manner.

The disclosure of personal information is both an exercise and a relinquishment of

control at the same time …. Thus if X told Y that he was HIV positive, he would
be both exercising control (by communicating the information to someone he
wanted to tell) and losing control (because Y would then be in a position to pass it
on herself) This suggests that the only way in which a person can maintain control
over information (and thus retain privacy on a control-based definition) is by
refraining from disclosing it to anyone. It must be doubtful whether such a narrow
range of options can really be said to be control at all.76

76
N. Moreham, “Privacy in the Common Law: A Doctrinal and Theoretical Analysis” (2005) 121 L.Q.R.
628 at 638.

20
This criticism would be particularly problematic given the emphasis attached in this
chapter to privacy‟s utility as a facilitative principle of social interaction. A definition of
privacy which precluded the possibility of sociably exercising the right would not fit with
this chapter‟s conception of privacy.

Privacy as “Desired Inaccess”

In Moreham‟s view, “privacy is best defined as the state of „desired inaccess‟ or as
„freedom from unwanted access‟”.77 She attaches particular importance to the „desire‟
limb of this definition. In this, Moreham usefully underlines the role which the
individual‟s subjective intentions play in protecting privacy. 78 However, in relying on a
concept of inaccessibility, she comes close to the theories of Gavison and Allen. The
incorporation of a „desire‟ element negates the objection that accessibility is an overly
broad concept which is capable of characterising an involuntary state of seclusion as an
instance of privacy. It remains, however, too narrow to serve as the basis for a richer
conception of privacy. Defining privacy in terms of inaccessibility – even desired
inaccessibility – misses the whole social dimension of privacy protection. It treats the
intimate sharing of private information as a loss of privacy, albeit a voluntary one. This
denies the possibility of a privacy claim being asserted in respect of information which
was voluntarily divulged. It also fails to distinguish between disclosure to a few people
and disclosure to all the world. Once lost, inaccess cannot be reclaimed. Defining privacy
as inaccess means therefore that privacy cannot support an enforceable claim to
protection once access has been obtained.

Control as a Normative Concept

On Moreham‟s analysis, the same criticism can be made of control-based definitions.
This is true if control is understood in a purely descriptive sense. It is more appropriate,
however, to treat it as a normative concept. The question raised by a privacy claim is not
whether the individual retains exclusive control over the subject-matter in question but
rather whether they ought to be able to control another‟s access to, or use of, that subject-
matter.
Moreham‟s example of the computer hacker envisages control as a descriptive factual
state. The computer owner has lost control once he is factually incapable of ensuring no
one accesses his information It is more correct, however, to understand control in that
context as referring to the computer owner‟s entitlement to have his desire to deny the
hacker access enforced. His privacy claim is not an assertion of exclusivity or factual
inaccess. It is a claim to have his right to control current and future access acknowledged
and enforced.
Moreham‟s reliance on a descriptive concept of access falls into the same error as
Strahilevitz‟s “social networks” theory of privacy. 79 This contends that the courts ought
to draw on social networks theory to determine whether a claim of privacy ought to be
upheld. Social networks theory concerns patterns and scales of information dispersal
across a social network. Strahilevitz‟s thesis is that, by looking to these theories, a court
will be able to accurately identify whether the information divulged would have reached

77
ibid. at 636.
78
This is discussed further below.
79
L. J. Strahilevitz, “A Social Networks Theory of Privacy” (2005) 72 U. Chi. L. Rev. 919.

21
a wide audience, regardless of the defendant‟s acts. This theory again assumes that
privacy is a factual state of controlled inaccess. The focus of the court‟s enquiry on a
“social networks” approach would be on whether privacy could factually be said still to
exist. Privacy is, however, an entitlement to exercise control which is protected by the
courts as a normative corollary of individual autonomy. The correct approach, therefore,
is to consider whether the claimant, as an autonomous individual, ought to be entitled to
exercise control over the act in question.

The centrality of control to a definition of privacy is evident if a lesser version of

Moreham‟s theory is considered. Her reliance on inaccessibility was criticised above for
its all-or-nothing nature. This precluded the making of intuitively plausible privacy
claims in respect of information which has been shared with a limited number of others.
This also failed to pay due regard to the social aspects of privacy protection. These
difficulties are the result of the treatment of inaccessibility as an absolute value. If it is
conceived of in a less strict sense, however, control re-emerges as the operative principle.
Defining inaccessibility in a way which permitted the possibility of graded scales of
access (for example, in relation to specified others, or limited information) would
constitute a more adaptable and socially-realistic conception of privacy. It would accept
the possibility of intimate sharing without destroying the individual‟s right to privacy. It
also, however, presupposes the presence of a power to regulate access on a graded scale.
It assumes that the individual is entitled to allow access to specified others and to prevent
them from broadcasting the information to a wider audience. This is the only way in
which a graded scale of inaccessibility could function. It requires, therefore, that the
individual is vested with this control. Once the idea of inaccessibility as an absolute is
abandoned (as this chapter suggests it must be), privacy will only be adequately protected
if it is expressed in terms of individual control.

Individual Desire and the Waiver of a Privacy Right

This discussion also illustrates another key characteristic of a privacy claim, properly
conceived. Moreham‟s theory usefully reiterates the importance of the individual‟s
desires. A privacy regime must always permit the possibility of waiver. This respects the
value of individual autonomy upon which the protection of privacy rights is based. There
has been a tendency in some areas, however, to consider the individual‟s intentions in
relation to the original loss of inaccessibility. The focus of a privacy claim should more
properly be on the individual‟s intentions vis-à-vis the threatened or impugned act. The
fact that an individual voluntarily agreed to permit a particular form of access should not
be regarded as carte blanche for all forms of exposure.
This sort of error can be found in the Canadian decision of Milton v Savinkoff.80 The
plaintiff accidentally left a topless photograph of herself in the defendant‟s coat. He
found it and circulated it amongst his friends. Cooper J., in dismissing her claim for a
breach of privacy, relied heavily on the fact that she had voluntarily consented to the
taking of the photograph in the first place. She could not subsequently object to the way
in which the photograph was used. This incorrectly focused however on the
circumstances in which the photograph was taken rather than on the defendant‟s actions
in widely broadcasting images of the plaintiff‟s body against her wishes. This meant that
80
(1993) 18 C.C.L.T. (2d) 288.

22
the defendant was free to do as he pleased with the photograph. This does not vindicate
the right to privacy. Milton illustrates how, in articulating a privacy case, “it is essential
to characterise the invasion of privacy carefully” so that the court is not led into error.
Defining privacy as all-or-nothing inaccessibility encourages this sort of analytical mis-
step by concentrating attention on the way in which access was initially obtained. To
adequately protect privacy, a system must be capable of enforcing an individual‟s desire
not to allow himself to be accessed in unwelcome ways by unwelcome others. This can
only be done if privacy is conceived of as the power to control not access per se, but the
access of particular others (be they identifiable or otherwise) to particular material.
Privacy is not the factual state of being inaccessible. It is the normative entitlement to
regulate one‟s own social existence through the flexibly multi-faceted control of other‟s
access to the self. A court faced with a properly-formulated privacy claim is required to
ask itself whether the plaintiff ought to be entitled to exercise control over the
defendant‟s threatened acts (or ought to have been entitled where the case concerns
damages in relation to a past act).

The Role of a Legal Right to Privacy

This also underlines the role of the legal right to privacy as distinct from the moral claims
considered in this chapter. The purpose of a legal right to privacy is not to vindicate an
individual‟s desire for control. A legal right to privacy distinguishes between cases where
an individual would like to control access to the subject-matter in question and those
where the individual has an enforceable entitlement to do so. This does not mean that the
former situation is not a privacy claim in itself. It is, however, not a legal privacy claim.
A person may be disappointed or angry if an intimate other shares information of a
private nature but their sense of personal outrage (even if it is understood as undermining
their autonomy) is not sufficient to justify the legal enforcement of that desire. The law
should not, for policy reasons, concern itself with restraining the everyday social
interactions of ordinary individuals. A right to privacy should not operate so as to restrain
or inhibit the processes of social self-presentation and self-development which it purports
to protect.
This chapter has advanced an abstract conception of privacy as an individual‟s control
over the access which others have to the different dimensions of that individual‟s privacy.
A legal right to privacy will only vindicate that control in certain situations. A legal
regime thus requires an analytical device which is capable of determining what types of
privacy claims ought to be enforceable.
This chapter has shown that privacy is an interest deserving of protection for the way in
which it supports the innate autonomy of the socially-situated individual. It has
articulated the case for privacy as an essential condition of self-determination and self-
government. The legal protection of privacy, however, requires legislators and courts to
develop techniques and devices which can identify suitable privacy claims and ensure
that that are protected. The remainder of this book is devoted to an examination of the
ways in which these tasks have been performed elsewhere and might, in the future, be
performed in Ireland.

PRIVACY AND FREEDOM OF EXPRESSION

23
The Relationship between Privacy, Autonomy and Expression
Privacy and freedom of expression are often portrayed as opposing interests. This is a
result of the fact that the archetypal privacy action seeks to restrain, or to recover
damages in respect of, the dissemination of allegedly private information by a media
outlet. In that scenario, there is a clear conflict between the individual‟s asserted right to
preserve their privacy and the media‟s constitutional entitlement to publish information.
That is not always the case, however. As this section will show, there may be
circumstances in which privacy and freedom of expression operate as complementary
rather than conflicting values.

The latent compatibility of privacy and free expression interests derives from their
shared concern for individual autonomy. This chapter has argued at some length that the
protection of privacy is justified because it supports the autonomy of the individual
citizen. Similarly, the right of an individual to speak freely is protected in part because
expression is one of the primary ways in which an individual can assert their autonomy.
As Richards explained it:

“Freedom of expression permits and encourages the exercise of [the individual‟s]

capacities: it supports a mature individual‟s sovereign autonomy in deciding how
to communicate with others; it disfavours restrictions on communication imposed
for the sake of the distorting rigidities of the orthodox and the established. In so
doing, it nurtures and sustains the self-respect of the mature person.”81

Protecting an individual‟s privacy creates the conditions necessary for him to fully
exercise his free speech rights. It assures him of a sphere in which his expression of his
ideas can be as robust and uninhibited as he likes, unencumbered by the prospect of
external regulation or reproach.
A logical corollary of this is that a failure to adequately protect privacy may hamper an
individual‟s exercise of his entitlement to freedom of expression. Surveillance of the
individual might, for example, discourage him from giving voice to an opinion which he
would have expressed in private. A threat of media disclosure might similarly lead an
individual to withhold his views on various matters. This is especially so where the
opinion held is an unpopular one which, if publicly exposed, would be likely to attract
condemnation. Yet the articulation of such unorthodox views is the essence of freedom of
expression. The absence of an enforceable right to privacy can lead to the sort of
individual self-censorship which has a profoundly chilling effect upon that person‟s
freedom of speech.
This may be illustrated by reference to a number of concrete examples. In the decision
in Mahon v Keena,82 a Divisional High Court recognised the existence in Irish law of the
81
D. A. J. Richards, “Free Speech and Obscenity Laws: Towards a Moral Theory of the First Amendment”
(1974) 123 U. Pa. L. Rev. 45 at 62. Other autonomy-based defences of freedom of expression can be found
in R. Dworkin, A Matter of Principle (Harvard University Press, 1985); M. Redish, Freedom of
Expression: A Critical Analysis (Michie, 1984). D. Strauss, “Persuasion, Autonomy and Freedom of
Expression” (1991) 91 Columbia L. Rev. 334; T. Nagel, “Persona Rights and Public Space” (1995) 24
Philosophy and Public Affairs 83.
82
[2007] IEHC 348.

24
concept of journalistic privilege. This means that Irish journalists are generally immune
from any obligation to disclose the identity of their sources. The court was clear that this
privilege will most strongly protect the identity of sources with whom journalists have
cultivated a relationship. This reflects the fact that “without sources of information,
journalists will be unable to keep society informed on matters which are … of public
interest”. The court accepted that it would be more difficult to convince people to inform
journalists about such matters if there was a risk that the journalist might be obliged to
reveal their identity. By protecting the privacy of the source, the law makes it more likely
that they will speak about issues of public importance.

The same is true of situations where an individual may be at risk of surveillance or

exposure. Where a prisoner‟s correspondence is checked (or is even liable to be checked),
that prisoner is more likely to feel precluded from expressing particular views. Where e-
mail correspondence is monitored by an employer or an online host (especially where the
correspondence is stored), the individual‟s ability to express his opinions unhindered is
constrained. This will be particularly true after some individuals have been punished or
exposed as a result of this monitoring. Where the actions of an individual will be
broadcast to the world (as with the case of a celebrity, or with the recent controversy over
Facebook‟s dissemination of people‟s purchasing habits), the individual is likely to act
differently to the way he would if he was alone and unsupervised. Permitting the
existence of such a state of “conscious and permanent visibility”83 hinders individual
expression and autonomy.

Privacy and Expression in the US Supreme Court

The relationship between privacy, expression and autonomy was considered by the US
Supreme Court in its decision in Bartnicki v Vopper.84 In this decision, the Court
unanimously recognised that privacy and free speech can be mutually supportive. This
encouraged several members of the Court to mount a strong defence of the right to
privacy. That several of them were willing, depending on the circumstances of this case,
to accord more weight to privacy rather than free speech interests is noteworthy given the
Court‟s traditionally staunch defence of First Amendment values.
The case concerned the broadcast by a radio station of an intercepted telephone
conversation between two union officials. The call had been intercepted by an unknown
party. All agreed that the defendant station had played no part in intercepting it, or in
procuring the intercept. The officials were discussing an ongoing industrial relations
dispute in which they were involved. During the call, the officials could be heard
discussing strategy and, at one point, making threats of physical violence against
individuals on the other side of the dispute. The officials sued for damages. The court
held 6-3 that the defendant‟s conduct was protected by the First Amendment. All of the
judges, however, accepted the federal government‟s argument that protecting the privacy
of individual‟s in their personal communications was a valid governmental interest which
could secure a citizen‟s free speech rights. For the majority, Stevens J. observed that “the

83
Fn. 3 above.
84
(2001) 532 U.S. 514.

25
fear of public disclosure of private conversations might well have a chilling effect on
private speech”,85 citing with approval a Presidential Commission‟s statement that:

“In a democratic society, privacy of communication is essential if citizens are to

think and act creatively and constructively. Fear or suspicion that one‟s speech is
being monitored by a stranger, even without the reality of such activity, can have
a seriously inhibiting effect upon the willingness to voice critical and constructive
ideas.”86

Breyer J.‟s concurring opinion (with which O‟Connor J. agreed) advanced a similar view.
He held that the federal prohibition on wire-tapping aimed to protect personal privacy.

That assurance of privacy helps to overcome our natural reluctance to discuss

private matters when we fear that our private conversations may become public.
And the statutory restrictions consequently encourage conversations that might
not otherwise take place.87

He also noted that the intrusive impact of the initial interception may be exacerbated if
subsequent media disclosure of it is permitted.

Media dissemination of an intimate conversation to an entire community will

often cause the speaker serious harm over and above the harm caused by an initial
disclosure to the person who intercepted the phone call. And the threat of that
widespread dissemination can create a far more powerful disincentive to speak
privately than the comparatively minor threat of disclosure to an interceptor and
perhaps to a handful of others.88

Breyer and O‟Connor JJ. thus expressly envisaged the possibility that the media could be
prohibited from broadcasting intercepted conversation in cases where it was accepted that
they had acted lawfully. The two judges (who were the „swing‟ members of the majority)
were at pains to emphasise that dissemination was constitutionally protected only in the
unusual circumstances of this case. The individuals here were public figures who had no
legitimate interest in protecting the privacy of a conversation in which physical threats
were made. On the facts before the court, “the speakers‟ legitimate privacy expectations
are unusually low and the public interest in defeating those expectations is unusually
high”.89 In general, however, the importance of the right to privacy would permit the
legislative restriction of media dissemination even where the media had not acted
unlawfully.
For the minority, Rehnquist C.J. also agreed that privacy and freedom of speech were
connected, commenting that the Congress‟ “concern for privacy was inseparably bound

85
(2001) 532 U.S. 514 at 533.
86
President‟s Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in
a Free Society (1967), cited at 533.
87
(2001) 532 U.S. 514, at 537.
88
ibid. at 537.
89
ibid. at 540.

26
up with the desire that personal conversations be frank and uninhibited, not cramped by
clandestine surveillance and purposeful disclosure”.90 Permitting the broadcast of the
intercepted conversation, in the minority‟s view, “diminishe[d] rather than enhance[d] the
purpose of the First Amendment”.91

The Differences between Individual Expression and Media Expression

The decision in Vopper usefully clarifies an important conceptual aspect of privacy
claims against media defendants. It underlines the fact that the conflict in such a case is
not necessarily between freedom of expression and the right to privacy. As Vopper
demonstrates, the protection of privacy may, in certain circumstances, actually support
freedom of expression. The interest engaged by a privacy action against a media
organisation is not, therefore, freedom of expression per se but the separate and distinct
notion of media freedom. This is a fact which may be overlooked when this type of case
is considered. Barendt has bemoaned this lack of analytical precision, criticising how
“[i]n an age when communication has been dominated by the press and broadcasting
media, we have lost sight of the free speech interest of individuals, or at least paid them
less attention”.92 Consistently observing and adhering to this distinction is crucial because
it allows for a more accurate balancing of competing interests.
For a court confronted with a privacy claim, individual and media defendants raise
different issues. In the first place, the extent of the harm occasioned to a claimant by a
media defendant may be significantly greater than that caused by an individual. This may
be the case even where the individual was the initial invader of the person‟s privacy.

“From the perspective of privacy, disclosure to, and by the press, is much more
damaging than conversation between family and friends. Media gossip is quite
different in its impact from village gossip.”93

This was acknowledged by Breyer and O‟Connor JJ. in Vopper.

Secondly, the motivations of the alleged privacy invasions may differ. A media
defendant may more easily be characterised as having acted out of a desire for profit.
Media coverage is specifically protected under the Constitution but it is worth noting that
courts in the past have, on occasions, found that “purely commercial”94 expression is not
entitled to constitutional protection. If a court felt that an impugned publication was
motivated entirely by profit without any connection to the media‟s performance of its
constitutional obligations, it could be tempted to regard a claim of freedom of expression
as carrying little weight. This was the approach adopted in Valiquette v The Gazette95
where the defendant‟s attempts to rely on an alleged public interest in the article were
rejected by the Quebec courts. The court held that the defendant‟s actions had been

90
ibid. at 543.
91
ibid. at 542.
92
E.Barendt, “Privacy and Freedom of Speech” in A. T. Kenyon & M. Richardson eds., New Dimensions
In Privacy Law: International and Comparative Perspectives (2006, Cambridge University Press), at 30.
93
ibid. at 23.
94
Valentine v Chrestensen (1942) 316 U.S. 52. The American courts have subsequently moved away from
this stark view of commercial speech as falling outside the First Amendment. See A. O‟Neill, “Corporate
Freedom of Expression” (2005) 26 DULJ 184.
95
[1991] 8 C.C.L.T. (2d) 302.

27
entirely driven by commercial considerations. As Viau J. observed, “[o]ne could not find
a better example of a case where commercial interest took precedence over the interest of
the public and the right to private life”.96
This leads on to the third and most significant distinction between individual and media
defendants – that the law‟s protection of their interest in expression is premised on the
protection of very different values. This means that different interests are engaged in a
privacy claim. Conducting a balancing exercise between the right to privacy of an
individual and another individual‟s freedom of expression is an analytically different
matter to that involved in weighing an individual‟s privacy rights against a media outlet‟s
freedom of expression.

The Protection of Media Expression

Media speech is sometimes protected as a derivative principle of the more general
entitlement to freedom of expression. Freedom of expression is protected for a variety of
reasons.97 Only some of these rationales, however, appear to justify the protection of the
media‟s freedom of expression.
In particular, it is unclear whether the media ought to be able to rely upon the autonomy
justification of freedom of expression outlined above. After all, “[t]heir potential for
moral and spiritual development is not at issue if their publishing freedom is restricted”.98
Neither can a media body convincingly rely on the autonomy interests of their journalists
or editors. An individual‟s freedom of expression is protected so that he can exercise his
autonomous entitlement to put forward his particular views. It does not demand that these
views be given a national or international platform.99 Protecting media freedom as an
autonomy interest goes beyond what is required to respect an individual‟s autonomy.
Furthermore, it arguably contradicts the autonomy principle. The protection of autonomy
is based on a conception of each individual as deserving of equal respect. By privileging
the opinions of specific speakers, the media certainly does not strictly adhere to ideas of
autonomy or equal respect.
The freedom of the media thus ought to be justified on other grounds. These grounds
are consequentialist rather than deontological. As O‟Neill has explained:

Th[e] guarantee of freedom of expression can be seen as one which is concerned

with the self-fulfilment of the individual – an autonomy-based value – as well as
the preservation of a free flow of ideas – a utility-based value. The former value
justifies the protection of the speaker as well as the audience. Where the latter is
emphasised, the emphasis is usually on the interests of the audience and the
contribution of the speech to society as a whole.100

96
ibid. at 310. Translation.
97
See, for example, K. Greenawalt, “Free Speech Justifications” (1989) 89 Columbia L. Rev. 119.
98
E. Barendt, loc. cit. at 23.
99
The Supreme Court held in State (Lynch) v Cooney [1982] 1 I.R. 337 that an individual does not enjoy
any legal entitlement to make a broadcast or otherwise have access to the airwaves, per O‟Higgins C.J. at
362 and Henchy J. at 382.
100
A. O‟Neill, The Constitutional Rights of Companies (2007, Thomson Round Hall), at 200.

28
The media‟s contribution to society is usually explained in terms of its fostering of a free
market of ideas,101 and its provision of information to the voting public about issues of
national or governmental concern.102
There is considerable support for the consequentialist analysis of media freedom in
Irish law. Article 40. 6. 1. (i) evinces this view of the media by connecting the protection
of the press with the education of public opinion. The Irish courts too have demonstrated
an increasingly sophisticated awareness of this important distinction between individual
and media expression. Judicial discussions of media freedom over the last decade have
generally been framed in consequentialist terms.103
On this analysis, the protection of the media‟s freedom of expression is justified for
what it does, rather than for what it is. Media expression is not valued for its own sake. It
is protected because of a belief that this protection will produce positive social benefits.
This logically implies that it is permissible to regulate or restrict non-beneficial media
expression. “The force of a consequentialist reason is dependent on the factual
connection between a practice and the supposed results of the practice”.104 If media
expression (or, more specifically, certain forms of media expression) does not produce
positive effects, arguments in favour of its protection accordingly lose their force. That is
not to say, of course, that media expression does not deserve strong legal and
constitutional protection. It does, however, mean that it may be justifiable to hold in an
appropriate case that media expression does not serve any social benefit, or that its
benefit is outweighed by a competing social value or by a fundamental individual right.
For example, the Canadian Supreme Court has refused to extend constitutional
protection to false publications about political figures on the grounds that they would
have detrimental rather than beneficial consequences. Cory J. found that “the
dissemination of falsehoods … exact a major social cost by deprecating truth in public
discourse”105, reasoning that “[f]alse reports are „inimical to the search for truth” and
“harmful to the interests of a free and democratic society”.106

Balancing Privacy Rights and Media Expression

In the privacy context, this means that a court is required to weigh the individual‟s
fundamental interest in protecting their privacy against the purported social benefits of
allowing the widespread publication of private facts. A court is asked not to balance
conflicting fundamental rights to privacy and freedom of expression but rather to assess

101
See, for example, J. Milton, Areopagitica (1819); J. S. Mill, On Liberty (1859); Abrams v U.S. (1919)
250 U.S. 616, per Holmes J. dissenting.
102
The provision of information to the public is secured by the separate but related media functions of
communicating information and investigating and exposing abuses of power. See, for example, V Blasi,
“The Checking Value in First Amendment Theory (1977) 2 American Bar Foundation Research Journal
521; A. Meikeljohn, Political Freedom (Harper, 1960); E. Barendt, Freedom of Speech (2nd ed., Oxford
University Press, 2007). For a discussion of the differences between these theories of media freedom, see
E. Carolan, “Defamation and Privacy Reform: A Democratic Model of Media Freedom?” (2006) 11 (5) Bar
Rev.iew 147.
103
See, for example, Irish Times v Ireland [1998] 1 I.R. 359; Murphy v IRTC [1998] 2 I.L.R.M. 360; Kelly
v O’Neill [2000] 1 I.R. 354; Hunter v Duckworth [2003] IEHC 81; Cogley v R.T.E. [2005] 4 I.R. 79; Leech
v Independent Newspapers (Ireland) Ltd [2007] IEHC 223.
104
K. Greenawalt, “Free Speech Justifications” (1989) 89 Columbia L. Rev. 119 at 128.
105
Hill v Church of Scientology [1995] 2 S.C.R. 1130 at 1183, per Cory J.
106
[1995] 2 S.C.R. 1130 at 1174.

29
whether the media‟s conduct in uncovering and/or disseminating the „private‟
information in question is a socially beneficial act which thereby deserves protection.
This is a balancing exercise which is not automatically weighted towards one interest or
another but which must be carried out on a careful examination of the facts of a case. A
consequentialist conception of media freedom means that the interests of the media will
not automatically trump the privacy rights of the individual. A court is instead obliged to
conduct a more subtle and sophisticated analysis of a competing social policy and
individual right.

30