The Two Western Cultures of Privacy: Dignity Versus Liberty

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LAW 343 Information and Privacy

Notes

contrast between two conceptions of privacy most recently distinguished by Robert Post: between privacy as an aspect of dignity and privacy as an aspect of liberty.

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Continental privacy protections are, at their core, a form of protection of a right to respect and personal dignity. The core continental privacy rights are rights to one’s image, name, and reputation, 44 and what Germans call the right to informational self-determination

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the American right to privacy still takes much the form that it took in the eighteenth century: It is the right to freedom from intrusions by the state, especially in one’s own home

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The comparative law of privacy is not about the intuitive preconditions of personhood, but about contrasting political and social ideals. In the United States those political and social ideals revolve, as they have for generations, primarily around our suspicions of the police and other officials, while on the Continent they revolve unmistakably around one’s position in society, one’s “dignity” and “honor.”

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Europeans generally give a dramatic explanation for why dignity figures so prominently in their law: They assert that contemporary continental dignity is the product of a reaction against fascism

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The European culture of dignity is not well-understood as any kind of simple reaction against fascism

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continental law has enforced norms of respect and dignity for a very long time

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What we see in continental law today is the result of a centuries-long, slow-maturing revolt against that style of status privilege

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The uncomfortable paradox, as I have tried to show, is that much of this leveling up took place during the fascist period, for fascist politics involved precisely the promise that all members of the nation-state would be equal in “honor”

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continental privacy law, like most continental law of respect, developed largely from the law of insult. It even has connections with dueling. It has a Nazi history

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true that those very press liberties threatened the “private person.” 91 For that reason, it was important to confer upon persons whose private lives had been violated some legal recourse against “insults.”

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During the decades after 1819, the primary means of protecting one’s honor was through the duel, and “private life” was defended, at least sometimes, in exactly that way. Thus, the dueling literature listed “the delicacy of private life” among the aspects of “honor” that demanded protection. 98 And it was indeed so protected

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Paris appeals court answered that question by holding that he had a new kind of “right to privacy,” which qualified the absolute claims of the law of property.

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German law of personality is a law of freedom—the law of the Inner Space, “‘in which . . . [humans] develop freely and self-responsibly their personalities.’”

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to be free was to exercise free will, and the defining characteristic of creatures with free will was that they were unpredictably individual, creatures whom no science of mechanics or biology could ever capture

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Privacy, for Germans, became one part of “free self-realization.”

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Privacy is an aspect of personal dignity within the continental tradition, and personal dignity is never satisfactorily safeguarded by market mechanisms.

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Dignity, to this way of thinking, simply must be treated differently from property

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If one accepts that premise, one should accept the proposition that any consumer’s consent to the sale of his or her data should have only limited effect at best.

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The right of free expression that protects the press is always balanced in continental Europe against an individual right to “dignity,” “honor,” or “personality,”

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Moreover, to the French way of thinking, the fact that one has revealed oneself to a restricted public—say, the gay community of Paris—does not imply that one has lost all protections before the larger public

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One’s nude image is simply not definitively alienable under continental norms.

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the court lifted the injunction on the ground that the photos were already widely available on the Internet.

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For Americans, by contrast, the right to privacy is, at its metaphoric core, a right to hide behind the walls of one’s own home. Those who have abandoned the protection of the home, and a fortiori the protection of clothing, have at best a diminished claim to privacy

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French and German writers held that privacy had emerged as a limitation on property, 279 and an evolutionary outgrowth of the growing sensitivity to the needs of “personality.” 280 Warren and Brandeis echoed these ideas

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Freedom of expression has been the most deadly enemy of continental- style privacy in America

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We cannot simply start by asking ourselves whether privacy violations are intuitively horrible or nightmarish. The job is harder than that. We have to identify the fundamental values that are at stake in the “privacy” question as it is understood in a given society. The task is not to realize the true universal values of “privacy” in every society. The law puts more limits on us than that: The law will not work as law unless it seems to people to embody the basic commitments of their society. In practice, this means that the real choice, in the Atlantic world at least, is between social traditions strongly oriented toward liberty and social traditions strongly oriented toward dignity

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There is no such thing as privacy as such. The battle, if it is to be fought, will have to be fought over more fundamental values than that.

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