The International Covenant on Civil and Political Rights and United Kingdom Law

By David Harris; Sarah Joseph | Go to book overview

10
Privacy

JAMES MICHAEL


INTRODUCTION

Although 'privacy' may be a value common to most societies (making allowances for the very different kinds of activity and information it is attached to), its recognition as an enforceable right in various legal systems has been relatively recent. The French Declaration of the Rights of Man and the Bill of Rights in the Constitution of the United States both have fairly specific declarations of the right to freedom of expression, but no equivalent general statement of the right to privacy. In cultural terms,1 privacy has been defined as the desire of individuals for solitude, intimacy, anonymity, and reserve. As a description of private-law rights (not necessarily limited to the United States) the formulation by Dean Prosser of privacy into four torts of intrusion, presenting an individual in a 'false light', disclosure of embarrassing private facts, and appropriation of a name or likeness is useful.2 An important distinction must be made between such private-law rights of privacy between persons (and against, although not on behalf of legal persons, on the sometimes controversial assumption that privacy is a right of human personality and not one enjoyed by legal persons such as companies), and fundamental rights of privacy against the state. The latter may be the basis for invalidating laws such as those restricting abortion3 or allowing telephone-tapping,4 and may also require states to establish private-law rights of action that can be asserted both against persons and against the state itself. Another important distinction is between physical zones of privacy and informational privacy, although the two may overlap in cases such as intrusive photography. An important aspect of information privacy, both as a value and as a legal right, is that the information which is sought to be controlled may be true or false (and the value is often stronger when it is true), and it is not limited to activities or information about them which would

____________________
1
Westin, A. F., Privacy and Freedom ( New York, 1968 and 1970).
2
48 Calif.LR 383.
3
As the US Sup. Ct. did in Roe v. Wade, 410 US 113 ( 1973); 93 S.Ct. 705 ( 1973).
4
As the ECtHR did in Malone v. United Kingdom, Series A No 82 ( 1984).

-333-

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