2.
PRIVACY
Introduction
2.1.
The exercise of investigatory powers impinges on a variety of human rights and
interests, including (as will be seen) freedom of expression, freedom of assembly and
the peaceful enjoyment of property. At the root of them are concepts which have been
described in international human rights instruments as “the right to respect for …
private … life, home and communications” and “the right to protection of personal
data”.1 The catch-all word “privacy” is often used, and will be used here, as an
imprecise but useful shorthand for such concepts.
2.2.
The UK public and courts are sometimes said to be less protective of privacy than
their counterparts elsewhere: a proposition that I examine at 2.26-2.35 below. But as
has been pertinently remarked:
“A public that is unable to understand why privacy is important – or which lacks
the conceptual tools necessary to engage in meaningful debates about its
value – is likely to be particularly susceptible to arguments that privacy should
be curtailed.”2
This Chapter seeks to look under the surface of what we call privacy, in order better to
understand the reasons why investigatory powers need to be limited and to inform the
debate on the form that such limitations should take.
The evolution of privacy
2.3.
1
2
3
4
5
It has been claimed that privacy is a “modern” concept, a “luxury of civilisation”,
unknown (and unsought) in “primitive or barbarous” societies.3 But ideas of privacy,
including the relative freedom of the home from intrusion, are set out in the Code of
Hammurabi of Ancient Babylonia, the laws of Ancient Greece and Rome and of
Ancient China.4 References are found to privacy in a range of religious texts, including
the Bible, the Koran, and Jewish law.5 Anthropologists have suggested that the need
for privacy, while sensitive to cultural factors, is not limited to certain cultures. Rather,
most societies regard some areas of human activity as being private, even if there are
European Union Charter of Fundamental Rights [EU Charter], Articles 7 and 8, a formulation updated
from that in the European Convention of Human Rights [ECHR], Article 8, which is “the right to respect
for … private … life ... home and correspondence”. On these instruments, see further 5.12-5.23 and
5.57-5.58 below.
B. J. Goold, “Surveillance and the Political Value of Privacy”, Amsterdam Law Forum (2009) (“Goold”).
See EL. Godkin, “The Rights of the Citizen: To His Reputation”, (1980) 8 Scribner’s Magazine 58, p. 65;
and R. Posner, “An Economic Theory of Privacy”, (1978) AEI Journal on Government and Society, 19,
p. 20.
See A. Rengel, Privacy in the 21st Century, 2013, (“Rengel”), p. 29; Samuel Dash, The Intruders:
Unreasonable Searches and Seizures from King John to John Ashcroft, 2004 (“Dash”), pp. 8-10.
See Rengel, p 29, and Dash, pp. 8-10.
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