Privacy and private law: the dilemma of justification.

• Author: Austin, Lisa M.

In recent years there has been a remarkable convergence across several common law jurisdictions regarding the need to recognize some form of a tort of invasion of privacy, particularly with respect to the publication of private facts. Despite this convergence, the author argues that there remains a palpable "containment anxiety" at play in the jurisprudence that is responsible for a number of recurring tensions regarding the scope of protection.

Instead of focusing on the question of how to define privacy, this paper frames the containment anxiety at issue in the cases in terms of a justificatory dilemma rather than a definitional one. Using the work of Mill and Kant, the author argues that if we understand privacy rights as protecting either the value of autonomy or freedom from harm then we can justify a narrow legal right to privacy. Although this can explain the containment anxiety in the jurisprudence, it severely undermines the growing recognition of the importance of privacy. Therefore this paper proposes an alternative justification for privacy rights that is rooted in the value of protecting identity interests, where identity is understood in terms of one's capacity for self-presentation.

On assiste depuis quelques annees a une convergence remarquable a travers plusieurs juridictions de common law quant au besoin de reconnaitre une forme de delit d'atteinte a la vie privee, plus particulierement en ce qui a trait a la publication de faits prives. Malgre cette convergence, l'auteur maintient qu'il existe toujours un certain > quant aux limites a imposer aux mesures de protection. Ce malaise, qui se fait sentir dans la jurisprudence, est responsable de certaines tensions recurrentes quant a l'etendue de la protection a accorder a la vie privee.

Plutot que de se concentrer sur une definition de la vie privee, cet article presente le malaise dont il est question dans les arrets en termes d'un dilemme de justification plutot que de definition. En se basant sur les travaux de Mill et de Kant, l'auteur fait valoir que si nous entendons le droit a la vie privee comme protegeant soit l'autonomie, soit l'exemption du mal, il est alors possible de justifier un droit etroit a la vie privee. Si cette approche peut expliquer le malaise ressenti dans la jurisprudence, elle mine severement l'importance croissante qui est accordee a la vie privee. Cet essai propose donc une justification alternative du droit a la vie privee qui se fonde sur l'importance de proteger les interets identitaires, ou l'identite est concue en termes de la capacite d'autorepresentation d'une personne.

Introduction I. Unravelling the Tort Claim A. Recognition of the Tort B. Substance of the Action II. The Justificatory Dilemma A. The Harm Argument B. The Coercion Argument III. Alternatives: Identity versus Authenticity Conclusion Introduction

It is rare for the tabloids to produce anything of interest to legal theorists. And yet it seems to be the fate of privacy law that many significant developments have been motivated by the prurient practices of celebrity gossip journalism. For example, in 2004 the House of Lords ruled that Naomi Campbell could recover damages for breach of confidentiality on account that her privacy had been violated by a British tabloid for detailing her alleged drug treatment, accompanied by a photograph of her purportedly leaving a Narcotics Anonymous meeting. The headline read: "Naomi: I am a drug addict." (1) In the same year the New Zealand Court of Appeal ruled that it was willing to recognize an independent tort of publication of private facts, even though it would not extend its protection to the children of celebrity couple Mr. and Mrs. Hosking who were photographed while being pushed in a stroller by their mother. (2)

These cases recall Samuel Warren and Lewis Brandeis's concern regarding the practices of yellow journalism and their claim, in 1890, that

[i]nstantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that "what is whispered in the closet shall be proclaimed from the housetops." (3) The remedy, they argued, was for judges to recognize a common law right to privacy, a right that American courts have subsequently protected through the law of torts. (4) This paper argues, however, that even if tabloid journalism has inadvertently forged a consensus regarding the need to respect privacy, it is still not clear whether, in what manner, and to what extent private law should be enlisted in this endeavour. One of the difficulties regarding private law protection for privacy is that this emerging consensus regarding the need for legal protection is nonetheless fragile and masks deep tensions. As I argue in this paper, while there is a clear "privacy impulse" emerging across several common law jurisdictions, there is also a "containment anxiety" at play in the case law whereby judges seek to contain the legal protection for privacy. This containment anxiety takes different forms and is responsible for the tensions and differences now evident in private law protection for privacy.

There are different ways to understand this containment anxiety. The simplest explanation is that it is motivated by the definitional difficulties surrounding privacy; as has been well catalogued in the literature, there is little consensus regarding what privacy is and when it has been violated. (5) However, while the definitional dilemma might be a familiar starting point for privacy theorists, this paper adopts a different approach. I argue that the containment anxiety at issue is better explained in terms of a justificatory dilemma rather than a definitional one.

All legal rights raise the question of scope, and this question is intimately linked to issues of value and justification: what values underlie the right claimed, and how do these values connect to justifications for legal liability? Traditional liberal strategies for justifying private law rights focus on either autonomy or harm. Using Mill, I analyze what privacy understood as insulation from harm looks like and using Kant, I analyze what privacy understood as the protection of autonomy looks like. My argument is that if we understand privacy as protecting either the value of autonomy or freedom from harm, then we can justify only a fairly narrow legal right to privacy. Although this can provide a reasonably precise explanation for the specific ways in which courts have sought to limit the scope of privacy claims, it severely undermines the growing recognition of the importance of privacy. Therefore, instead of delineating a narrow privacy right, I argue that this focus on justification shows that privacy is in fact not well described at all in terms of either harm or autonomy, and that a legal right based on either of these justifications will be unduly narrow.

The alternative account that I put forward at the end of this paper is that we should view privacy as protecting one's identity. Indeed, identity is a value upon which a number of privacy theorists are converging, although academic work on the relationship between privacy and identity is more prominent outside legal scholarship. (6) I invoke identity in order to argue that privacy protects one's capacity for identity formation. This can provide both an account of the privacy interests at stake in cases like Campbell and Hosking, as well as a justification for a more robust privacy right than that offered by an understanding of privacy rooted in either autonomy or harm. Attending to questions of justification in this way can therefore also help to illuminate the nature of what I have been calling the emerging privacy impulse in a manner that can help develop a more coherent jurisprudence.

1. Unravelling the Tort Claim

   Although their precise legal formulations vary, many of the major common law jurisdictions are beginning to converge on recognizing a private law right to privacy. For example, while courts in the United States have recognized a tort of invasion of privacy since 1904, (7) courts in New Zealand now also recognize this tort, at least as it applies to the publication of private facts, (8) and courts in the United Kingdom have held that the law of confidentiality protects privacy in similar circumstances. (9) Canadian courts have made numerous encouraging statements regarding common law protection for privacy, although most of these have arisen in very different contexts from the publication of private facts situation in both Campbell and Hosking. (10) Canadian commentators have also called for the general recognition of a tort of invasion of privacy. (11) Finally, a number of lower-court decisions in Australia have also endorsed some version of the tort. (12)

   For the purposes of comparison, this paper focuses on tort liability associated with the publication of private facts as it has developed in the United States, the United Kingdom, and New Zealand. Because other jurisdictions do not have similar leading decisions regarding the publication of private facts, I do not include a discussion of their developing privacy jurisprudence. (13) I argue that this strong judicial privacy impulse--an intuition that privacy is a fundamental value worthy of legal protection is being undercut by a judicial containment anxiety. This anxiety pertains to the consequences of providing the legal protection that seems called for by that privacy impulse and is leading to a number of important areas of disagreement and confusion in the case law. The following two sections outline in detail some of the inconsistencies and disagreements between jurisdictions as to the ambit of privacy rights in order to identify the key tensions and questions regarding private law protection for privacy. The first section reveals these tensions in the context of the question of whether to recognize a...