Privacy-related Rights and their Social Value*

Abstract

Abstract This Chapter explores the notion of privacy and rights related to it, arguing that privacy is important for social reasons as much as individualistic ones. It suggests that the social ends which privacy serves affect the development of and justifications for privacy-related rights. Discussion of the European Convention on Human Rights (hereafter ‘ECHR’) and domestic law on surveillance will illustrate the importance of distinguishing between(a) the meaning, existence, and potential value of privacy as a social phenomenon in particular settings, (b) the subsequent recognition by positive social morality of rights which safeguard privacy, (c) the protection of privacy-related rights by positive law, and the choices which must be made between using constitutional, statutory, common law, or regulatory standards and mechanisms as most appropriate to protect them in various circumstances, and (d) the implications all this has for enforcement procedures.Proponents of fundamental, privacy-related rights face two main problems. First, privacy is not universally regarded as fundamentally important. Some conceptions of privacy are incompatible with some forms of social and political organization, and so cannot be used as a basis for claims to fundamental, human rights. We have to provide a model of privacy which can justify a society in recognizing right-claims which appear to entail the subordination of communal interests to those of individuals. The next section will therefore advance a model of privacy which grows out of social structures, and will consider what sort of rights are appropriate to protect privacy.

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