Law Commission Study Paper
CHAPTER 3: A Conceptual Approach to Privacy
of equal respect for persons and that of humans as having autonomy, in the sense
that each person is able to live and order a life of his or her own choosing. We are
of the view that respect for a personfs privacy can assist in achieving elements of
personhood, such as intimacy and the ability to choose a certain life-path.7
3.9
We have adapted the second main option from the approach associated with Daniel
Solove: the so-called gpragmatich approach, which, as discussed in the previous
chapter, focuses on identifying privacy harms as disruptions of particular practices,
as opposed to exploring underlying values. These disruptions could include,
for instance, interference with onefs peace of mind, intrusion upon an individualfs
solitude, or loss of control over facts about oneself.8 We suggest a way of combining
these two options so that they might be seen as working together.
3.10 What we have called the gcore valuesh approach can be organised around the
idea of privacy as a sub-category of two interconnected core values:
E the autonomy of humans to live a life of their choosing, and
E the equal entitlement of humans to respect.
3.11 Privacy is seen as a sub-category of these core values because respect for privacy
and its value to human beings is conducive to autonomy and equality of respect.
for example, privacy assists autonomy by providing a measure of individual
solitude and reflection, allowing people to make life choices free from disturbance
or scrutiny. By creating a socially-sanctioned space in which people can live free
from observation and judgement by others, privacy also ensures equality of
respect for the life choices of individuals, even where others might disagree with
the content of those choices. To quote David gauthier in another context, equal
respect simply requires that geach respect the identity and aims [as well as
preferences or choices] of her fellows, willingly according them equal place in
their common affairs with her ownh.9
3.12 A right to privacy can be summed up as protection against unwanted access by
other people, where a person has a reasonable expectation of being able to control
such access. By gcontrolh we simply mean the power of saying gyesh or gnoh,
although, as with any choice, people do not always get their own way.
This approach is not dissimilar to Nicole Morehamfs idea that:10
privacy is best defined as the state of gdesired einaccessfh or as gfreedom from
unwanted accessh. i
n other words, a person will be in a state of privacy if he or she
is only seen, heard, touched or found out about if, and to the extent that, he or
she wants to be seen, heard, touched or found out about.
7
The value of privacy, including the fashion in which it might assist the development of trust, is considered
briefly in
h ickford, above n 5, 24-26.
8
Daniel Solove g
c
onceptualizing Privacyh (2002) 90
9
David gauthier gconstituting Democracyh in David copp, John E Roemer and Jean hampton (eds)
The Idea of Democracy (cambridge University Press, cambridge, 1995) 318. We recognise that the
concept of gequality of respecth is complicated and poses a number of important issues for debate
amongst scholars. Readers might wish to refer to the discussion in Kwame Anthony Appiah The Ethics
of Identity (Princeton University Press, Princeton, 2005) 91-100 and ch 6; and in charles Taylor
gThe Politics of Recognitionh in Amy gutman (ed) Multiculturalism: Examining the Politics of Recognition
(Princeton University Press, Princeton, 1994) 32.
10
N A Moreham gPrivacy in the c
ommon Law: A Doctrinal and Theoretical Analysish (2005) 121 LQR
628, 636.
The core
vaLues
approach
