CHAPTER 2: PRIVACY
Why is privacy important?
2.8.
Intrusions into privacy have been compared, compellingly, to environmental damage:
individually their impact may be hard to detect, but their cumulative effect can be very
significant.14 It is all the more important, therefore, to appreciate precisely why privacy
matters, and how intrusions into it can damage the ecosystem that privacy helps to
support.
2.9.
A good start is provided by the recent judicial description of privacy protection as “a
prerequisite to individual security, self-fulfilment and autonomy as well as to the
maintenance of a thriving democratic society”.15 As that statement implies, the privacy
ecosystem has individual, social and political aspects.
2.10.
First, privacy enables the expression of individuality. Without privacy, concepts
such as identity, dignity, autonomy, independence, imagination and creativity are
more difficult to realise and maintain.16 Privacy allows us to think and create in
freedom, to choose how we love and with whom we share: it enables the “sheer
chaotic tropical luxuriance of the inner life” to flourish.17 It facilitates an inner sanctum
that others must respect. It grants us the freedom to function autonomously, without
our every action being observed (or countermanded) by others. Of course, if we
choose to express our individuality in criminal or anti-social ways, privacy can facilitate
that too.
2.11.
Secondly and relatedly, privacy facilitates trust, friendship and intimacy: qualities
that allow us to relate freely to each other and that form the essential basis for a
diverse and cohesive society.18 Conversely, surveillance has been shown to lead to
self-censorship19 and the suppression of certain behaviour,20 though once again, antisocial as well as pro-social behaviour may be suppressed by surveillance.21
2.12.
Thirdly, privacy is necessary for the securing of other human rights, ranging from
the freedom of political expression to the right to a fair trial. Just as democracy is
enabled by the privacy of the ballot box, so the expression of dissenting views is
enhanced by the ability to put them across anonymously:22 the ability of a
whistleblower to reveal state misconduct and of a journalist to report it requires an
assurance that the journalist’s sources will not be made known to the state.23 There
14
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23
See J. Angwin, Dragnet Nation: A quest for privacy, security and freedom in a world of relentless
surveillance, 2014, (“Angwin”).
R v Spencer, para 15, summarising the effect of previous cases in the Supreme Court of Canada.
See Solove, p. 1145, and C. Fried, “Privacy”, (1968) 77 Yale LJ 475, discussing love, friendship and
trust.
Nagel, p. 4.
Goold; R. Post, “The Social Foundations of Privacy: Community and Self in the Common Law Tort”,
(1989) 77 Cal. L. Rev. 957.
See J. Kang, “Information Privacy in Cyberspace Transactions”, (1998) 50 Stan. L. Rev 1193, p. 1260.
A. Oulasvirta et al, “Long-term Effects of Ubiquitous Surveillance in the Home”, Ubicomp’ 12, 41.
To take a practical example, whether a person reports or owns up to scraping another vehicle in a car
park might depend on whether the incident is thought to have been recorded by CCTV.
This phenomenon long predates the internet age: see for example William Prynne’s anti-prelatical
pamphlet “Newes from Ipswich”, issued in 1636 under the name of Matthew White. The use of a
pseudonym and false Ipswich imprint (rather like a Tor exit node: 4.67(b) below) were attempts to
conceal the origin of a work that it was known the authorities would consider seditious.
See further 5.49-51 below.
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