Genetic Privacy: A Challenge to Medico-Legal Norms

By Graeme Laurie | Go to book overview

5
Privacyand the public interest

Contemporary privacy protection

Not until the closing days of the twentieth century did the English courts eventuallyrecognise a common law right of privacy.1 Prior to this the judiciaryhad expresslydenied such a right, suggesting that it was for Parliament alone to provide for privacyprotection.2 In ironic and stark contrast, the common law of privacyin the United States enjoyed a rich and productive twentieth century, its creation in turn having been instigated at the end of the previous centurybythe seminal work of Warren and Brandeis in which the authors relied on English common law actions in copyright, defamation and breach of confidence to argue for the existence of a US right to privacy.3 We have considered these latter developments in chapter 2.4 The more recent English volte face represents the culmination of a number of events that demonstrate how conceptuallyconfused thinking continues to beleaguer this field of scholarship, making for ill-conceived and patchyprivacy protection. These factors are (i) a failure to distinguish between the concepts of confidentiality and privacy, to the detriment of the legal protection of each; (ii) a lack of theoretical and definitional clarityas to the meaning of privacymore generally; and (iii) the advent of statutorydevelopments that embodyequally unclear conceptions of privacy, yet which at the same time have ushered in a new era of sensitivityto individual

____________________
1
Douglas and Others v. Hello! Ltd. [2001] 2 All ER 289.
2
See Kaye v. Robertson [1991] FSR 62, in which Leggatt LJ said at 71, '[the] right [of privacy] has so long been disregarded here that it can be recognised now onlybythe legislature … it is to be hoped that the making good of this signal shortcoming in our law will not be long delayed'.
3
S. D. Warren and L. D. Brandeis, 'The Right to Privacy' (1890–91) 4 Harvard Law Review 193.
4
For the most enlightening account of the divisions and development of the US common law privacyright see W. Prosser, 'Privacy: A Legal Analysis' (1960) 48 California Law Review 338.

-245-

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Genetic Privacy: A Challenge to Medico-Legal Norms
Table of contents

Table of contents

  • Title Page *
  • Contents vii
  • Preface ix
  • Table of Cases xii
  • Table of Legislation xviii
  • International Instruments xxi
  • Miscellaneous Documents xxiii
  • 1 - Health Care, Patient Rights and Privacy 1
  • 2 - Privacy: Anti-Social Concept or Fundamental Right? 28
  • 3 - Human Genetics and Genetic Privacy 86
  • 4 - Autonomy, Confidentiality and Privacy 182
  • 5 - Privacyand the Public Interest 245
  • 6 - Privacy and Property? 299
  • Index 329
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