BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT –
SEPARATE OPINIONS
Encroachments on privacy do not merely diminish individual autonomy and
mental and physical health, they also inhibit democratic self-governance.
4. First, privacy is important for a person’s mental and physical health.
The mere feeling that one is constantly being observed and evaluated by
others can have serious effects on one’s mental and physical well-being. It
makes individuals internalise too much of their social behaviour, so that
they feel guilty or ashamed because of any feelings or thoughts, desires or
practices that they would not want to express publicly. Such tensions
between the demands of their inner life and the pressures of
self-presentation can lead to serious health problems.
5. Second, external observation and the pressures on self-presentation
may obstruct “the promotion of liberty, autonomy, selfhood, human
relations, and furthering the existence of a free society”1. Surveillance is
inhibiting because it diminishes the extent to which we can spontaneously
and wholeheartedly relate to other people and engage in certain activities.
A lack of privacy would have a stifling effect on our inner life, our
relationships and ultimately our autonomy. “Thus will be lost ... the inner
personal core that is the source of criticism of convention, of creativity,
rebellion and renewal”2.
6. Third, privacy is essential for democratic self-governance. Mass
surveillance exerts internal and external pressures to conform, making
individuals submissive and deferential. In order to avoid outright oppression
and give itself the varnish of legitimacy, there is an inherent danger that the
State will utilise surveillance to ensure compliance and conformism. As
George Orwell described in the novel Nineteen Eighty-Four:
“There was of course no way of knowing whether you were being watched at any
given moment. How often, or on what system, the Thought Police plugged in on any
individual wire was guesswork. It was even conceivable that they watched everybody
all the time. But at any rate they could plug in your wire whenever they wanted to.
You had to live – did live, from habit that became instinct – in the assumption that
every sound you made was overheard, and, except in darkness, every movement
scrutinized.”3
7. In securing a realm for unobserved activity, privacy fosters and
encourages the moral autonomy of citizens, a central requirement of
self-governance in democracies4. Only autonomous beings can truly govern
themselves and only autonomous beings can truly enjoy all the civil rights,
such as the right to vote, freedom of association and participation in civil
Ruth Gavison (1980), “Privacy and the Limits of Law”, Yale Law Journal 89, p. 347.
Jeffrey Reiman (1995), “Driving to the Panopticon: A Philosophical Exploration of the
Risks to Privacy Posed by the Information Technology of the Future”, Santa Clara High
Technology Law Journal 11:1, p. 42.
3 George Orwell (2008), Nineteen Eighty-Four (London: Penguin), pp. 4-5.
4 Daniel Solove (2008), Understanding Privacy (Cambridge, MA: Harvard University
Press), p. 98.
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