CHAPTER 2: PRIVACY
differences concerning what or how much is private;6 and humans need privacy to
develop into adults, court, mate and rear offspring.7
Perspectives on privacy
2.4.
The elements of privacy are strongly interlinked, and subject to no academic
consensus. In the words of one scholar, privacy is “a value so complex, so entangled
in competing and contradictory dimensions, so engorged with various and distinct
meanings, that I sometimes despair whether it can be usefully addressed at all”.8 It
may however be useful to refer to a number of formulations that are of relevance to
the subject-matter of this Review.
2.5.
A classic formulation of privacy is the right to be let alone,9 once proclaimed to be
the “most comprehensive of rights and the right most valued by civilized men”.10 This
right has been associated with human dignity,11 with the notion of the “inviolate
personality” and with the need for beliefs, thoughts, emotions and sensations to be
protected from unwanted prying.12
2.6.
The same principle can be expressed in terms of a positive right to conceal or hide
information about ourselves. The idea of a “sphere” or zone in which privacy should
be assured can be extended by the idea that we operate in different spheres in
different situations: see for example the approach of the Canadian Supreme Court,
which has identified three broad types of privacy interest – territorial, personal and
informational – in respect of which different expectations and rules may apply. 13
2.7.
Privacy can also be understood in terms of control. Since knowledge is power, the
transfer of private information to the state can be seen as a transfer of autonomy and
of control. Even if the information is never actually read – for example, an electronic
communication which was obtained pursuant to a bulk data collection exercise but not
selected for scrutiny – the fact that it could be read may be seen as placing control in
the hands of the state. Control may also be transferred when information is given to
an online service provider, though with the distinguishing factors that consent is
required (nominally, at least) and that service providers, while they may use or sell
the data within the limits of their terms and conditions, lack the coercive powers of the
state.
6
7
8
9
10
11
12
13
See the discussion in Rengel, p. 28.
See Rengel, p. 28 and D. Solove, “Conceptualizing Privacy”, (2002) 90 Cal.L.Rev. 10987 (“Solove”).
Nagel has argued that it is our desire for privacy that separates us from other animals; T. Nagel,
“Concealment and Exposure”, (1998) Philosophy & Public Affairs, Vol 27 No 1 pp. 3-30, (“Nagel”) p. 18.
R. C. Post, “Three Concepts of Privacy”, (2001) 89 Geo. L.J. 2087.
S. Warren & L. Brandeis, “The Right to Privacy”, (1890-1891) 4 Harv. L. Rev. 193, p. 205.
Brandeis J dissenting in Olmstead v United States, 277 US 438 (1928), p. 478, later upheld by Katz v
United States 389 US 347 (1967).
See E. Bloustein, “Privacy as an Aspect of Dignity: An Answer to Dean Prosser”, (1964) 39 NYU L. Rev.
962 (“Bloustein”) p. 974.
As enumerated by Brandeis J in Olmstead v US.
R v Spencer, [2014] SCC 43 (CanLII), para 35 et seq.
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