Nov 15, 2018 in Analysis

The Right to Privacy Essay

The Right to Privacy

A person, his/her rights, and freedoms have the highest value. Observance, recognition, and protection of the rights and freedoms of a citizen and person must be a duty of every state. The right to privacy is one of the basic human rights. They include such important ones as the right to privacy, personal and family privacy, postal, telephone, telegraph, and other communications. These rights directly protect key human values, i.e. freedom and human dignity. These crucial individual rights for every person have become a subject of the paper.

Development of the Right to Privacy

The right to privacy strengthened its position in the United States in the late 19th century. It is now recognized by the overwhelming majority of states. Initially, the right to privacy in the United States had been a British political legacy. One of the essential characteristics of this law in the Anglo-Saxon legal system was the fact that this right had been not among the subjective rights under the US Bill of Rights. It had been originally formed by judicial precedents and a legal doctrine. “The Bill of Rights spells out some of the most fundamental rights that distinguish democracy” (Hudson, 2004, p. 8).

The right to privacy as an object of regulation of civil law emerged and began to develop simultaneously with the formation and development of a civil society. It happened in the countries that demonstrated respect for individual human rights. However, until the beginning of the 20th century, the right to privacy was not of the nature of moral rights. It recognized as an element of ownership and fell under the proprietary theory and civil law protection. They extended only to the physical media (letters and diaries). Nevertheless, in the UK, since the beginning of the 19th century, a sustainable practice of civil law protection of privacy began to develop (Kennedy & Alderman, 2010).

The next stage of development of the right to privacy was the formation of this right as a personal one not depending on property rights. “American legal and philosophical thinking about privacy begins with Samuel Warren and Louis Brandeis” (Rule & Greenleaf, 2010, p. 52). The need to extend the right to privacy became increasingly obvious with a rapid scientific and technological progress and the emergence of new technical means. It allowed people to intervene actively in the private life. However, approximately to the middle of the 20th century, the practice of civil law protection of the right to privacy was limited. It was so because many important intangible benefits from the scope of privacy (for example, telephone conversations) had found no protection and claims for a breach of privacy to large owners (owners of hotels or publishing houses). Even the public authorities remained largely unsatisfied (Kennedy & Alderman, 2010).

After the II World War, there was a global public rethinking of values associated with the protection of privacy. Strengthening of the right to privacy in the most important international legal instruments (the Universal Declaration of Human Rights, International Covenant on Civil and Political Rights, and European Convention on Human Rights) was the impetus for a final dissemination of privacy at both material (housing, letters, diaries, and photographs) and intangible objects of privacy (phone calls or conduction of a certain lifestyle). Thus, the right to privacy has passed three major stages of development transformed in the sense of civil law from an element of property rights to fully independent moral rights (Kennedy & Alderman, 2010).

Concepts of Privacy

Despite the fact that at the beginning of the 21st century privacy in civil law finally took its shape as independent moral rights, the very concepts of private life, privacy, the subject, object, and content of the right continue to be controversial in the writings of jurists. The notion private life has no normative interpretation because of impossibility to define rigidly the scope of privacy. Consequently, there is a need in the doctrinal interpretation of the concept of private life. There is no single definition of privacy as evidenced by the variety of existing definitions of the Anglo-American researchers and their approaches. In general, privacy can be described as a sphere of human activities. A person would like to see privacy uncontrolled and protected from outside interference. The subject of privacy as moral rights can be defined as an individual regardless of nationality, social status, presence or absence of capacity and so on. “Privacy rights belong to individual people, no matter who or where they are” (Bridegam, 2009, p. 12). An opinion expressed by some scholars that the subject of privacy may be a legal entity does not have strong reasons. Otherwise, it would mean that a legal individual has some qualities peculiar to the natural person, i.e. mind, will, and individual discretion needed to determine the content of private life.

The content of privacy is determined by powers included in the structure. With the increasing complexity of social relations, a number of these powers are changing. An analysis of provisions of laws and doctrines allows concluding that two categories of powers constitute the content of the right to privacy. They implement their actions. The first category regulates some actions that preserve the confidential nature of private life. It includes the right to control information, the right to prevent disclosure of personal information, and unauthorized use of the name, image or voice. Besides, the right to the confidential nature of correspondence and other communications are involved. Actions of the second category are aimed at the independent determination of the individual nature of privacy (the right to inviolability of home, the right to live without external physical and mental interference or the right to decide any issues of privacy independently). Since, in the content of the right to privacy, there are two categories of powers for the implementation of actions, an object of this law is the behavior of individuals. It is aimed at preserving the confidential nature of private life and to independent determination of the natural course of privacy (Glenn, 2003). 

 

The Notion of the Right to Privacy

In the modern civil law, privacy is recognized as a subjective right that has a complex matter. “Privacy is a difficult notion to define in part because rituals of association and disassociation are culturally relative” (Moore, 2011, p. 11). Private life should be regarded as a sphere of human activities, which a person would like to see uncontrolled and protected from outside interference. It includes, but not limited to personal, family and household relationships. The right to privacy is a subjective right of any individual, which lies in the implementation of life activities in an area of personal, family, household, and other relationships covered by the concept of private life. “The right to privacy is the right to be let alone” (Garretti, 2010, p. 6). It is based on principles of independent determination of the natural course of private life and the ability to save its confidential nature.

Violations of Law

Since privacy is a complex subjective civil law including a variety of powers, the concretization of its content is carried out through the study of violations of the law. Concretization of the content of privacy as moral rights is possible only on a basis of the analysis and systematization of civil law violations of the rights and obligations due to a result of these violations. There are four types of misdeeds against privacy: 

  1. Unjustified interference with privacy and disturbance of another person’s peace.
  2. Illegal use of a name or image of another person.
  3. Unjustified public availability of information about private life of another person.
  4. Unjustified place of another individual in the false light before the public (Lane, 2009).

Unjustified interference with privacy and disturbance of the peace of another person is recognized as a violation when committed intentionally. It is highly offensive to a reasonable individual. Examples of this tort include such unlawful acts as intrusion into the living space, listening or shadowing of private life of people (listening to a telephone line), and opening a personal mail. Such instances also involve a search of the safe, purse or personal things, checking the bank account, and using a fake court order to conduct a search of dwelling. Many of these illegal actions are associated with trespassing of security of residence. However, the judicial practice of the United States has recognized that under certain circumstances, even in public places, a person can expect that his/her privacy is not subject to an offense. Based upon the jurisprudence of the European Court of Human Rights, a broader interpretation of the concept of interference in private affairs and disturbance of peace and privacy can be identified. For example, it means the imposition of unwanted treatments to a patient or arbitrary denial of citizenship.

Illegal use of the name or image of another individual as a tort action takes place when the name or image of a certain person is used without his/her consent in other individual’s interests. The violated right is the exclusive possibility of a person to the identity expressed in the appearance and name. The American judicial practice has extended the judicial protection to more complex cases of unauthorized use of the means of individualization. They include the voice and, in certain cases, also nicknames, brand phrases and buzzwords, if they are widely known to the public as belonging to the particular individual. Unjustified public availability of information about the private life of another person is considered the tort. It occurs if it has an extremely offensive nature to the reasonable person. Forms of disclosure of information about private life  can be performed before an audience, a distribution of leaflets, a broadcast on radio or television and the publication in papers. The unjustified place of another individual in the false light before the public is considered a tort, if it is committed intentionally and extremely offensive. The action is considered to be tortious, when the information about the specific human being is presented in the following way. It is so if it can cause false negative associations in relation to the person before the public, such as the publication of a photograph in the paper next to a photo of a criminal or surrounded by the images of people with a dubious reputation (Lane, 2009).

Liabilities resulting from a violation of privacy have a nature of tort liability. Some forms of responsibilities on these liabilities are to restore the situation. They have existed before the violation of law, cessation of the acts infringing the right or creating a threat of these violations and compensations emitted from the material harm (loss) and non-pecuniary (moral) damages. A victim may also use other methods of civil protection (the recognition of a voidable deal as a void and application of consequences of its invalidity, as well as application of consequences of a void deal, invalidation of an act of public authority or local authority, self-defense, termination or modification of the legal relationship). They don’t involve the manners contrary to the nature of intangible rights. Effectiveness and validity of each particular mode of civil law protection depends on the nature of the violation powers. Liabilities resulting from breaking privacy often lead to the compensation of the moral harm.

Conclusion

Privacy is one of the most important moral rights in the civil law. It protects human dignity and freedom. It is coupled with such important moral rights as the right to life and the right to honor. At the same time, contemporary processes of globalization and the growing informatization of the society and problems of combating international terrorism make the right to privacy as a subject of numerous violations of civil law. It makes a necessary resort to various methods of protection. A distinctive feature of the right to privacy is that it is psychological and personal. Everyone defines what belongs to his/her private life.

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