University of New South Wales - Faculty of Law - Data Surveillance and Information Privacy Law

Should the concept of privacy be abandoned?

Raymond Wacks
  From Raymond Wacks, Law, Morality, and the Private Domain (Hong Kong University Press, 2000) originally published as as the introduction to Volume 1 of Privacy (The International Library of Essays in Law and Legal Theory (London: Dartmouth; New York: New York University Press, 1993) Volume I: The Concept of Privacy.

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The discourse on `privacy' is anything but coherent, though it is perhaps tendentious for one who has long regarded this development with unease so to characterize it[1]. Yet while it is undeniable that, at least in legal terms, `privacy' has `come a long way'[2] since its original formulation by Warren and Brandeis[3] as a right against embarrassing publicity, some may want to repudiate my position that the voluminous literature on the subject has failed to produce a lucid or consistent meaning of a concept which, particularly in the United States, continues to provide a forum for contesting, inter alia, the rights of women[4] (especially in respect of abortion)[5], the use of contraceptives[6], the freedom of homosexuals and lesbians[7], the right to obscene or pornographic publications[8], and the problems generated by AIDS[9]. An important consequence of this harnessing of `privacy' in the pursuit of so many disparate, sometimes competing, political ideals has been inevitable analytical turmoil.

The concept of `privacy'

The concern to protect `privacy' in its broadest, and least lucid, sense is founded upon a conception of the individual and his or her relationship with society. The idea of private and public spheres of activity assumes a community in which such a classification is possible, though this positive conception of `privacy' is a modern one which grew out of a twin movement in political and legal thought. The emergence of the nation-state and theories of sovereignty in the 16th and 17th centuries produced the idea of a distinctly public realm[10]. On the other hand, a delineation of a private sphere free from the encroachment of the state emerged as a response to the claims of monarchs (and subsequently of parliaments) to untrammelled power to make law[11]. Thus the development of the modern state, the regulation of social and economic behaviour, the perception of a `private' zone and so on are natural prerequisites to this form of demarcation[12].

But while there is ample historical evidence for this phenomenon, it is best captured by sociological models in which it is shown to be expressive of the values of certain forms of society. In other words, there is an apparent relationship between the existence of a public/private dichotomy and other fundamental features of a society. One such model is the distinctive representation of societies as exhibiting the characteristics of Gemeinschaft (in which, broadly speaking, there is a community of internalized norms and traditions regulated according to status but mediated by love, duty and a shared understanding and purpose). Another is Gesellschaft (where self-interested individuals compete for personal material advantage in a so-called free market)[13].

 The division between a public and private sphere is a central tenet of liberalism. Indeed, `liberalism may be said largely to have been an argument about where the boundaries of [the] private sphere lie, according to what principles they are to be drawn, whence interference derives and how it is to be checked'[14]. The extent to which the law might legitimately intrude upon the `private' is a recurring theme, especially in 19th-century liberal doctrine: `One of the central goals of nineteenth century legal thought was to create a clear separation between constitutional, criminal and regulatory law - public law - and the law of private transactions - torts, contracts, property and commercial law[15]. The question of the limits of the criminal law in enforcing `private morality' also continues to vex legal and moral philosophers[16].

Problems of definition

While the drawing of the public/private boundary is logically anterior to any conception of the role of law, it is also constituted by law. This circularity is compounded by the fact that non-legal regulation of what is apparently `private' may exercise significant controls over such behaviour. Moreover, it would be misleading to assume that, even in liberal thought, there is a consistent or definitive boundary between what is `private' and what is `public'. A vast literature devoted to the resolution of these difficulties inevitably raises complex methodological and epistemological questions which frequently obscure rather than illuminate.

Without suggesting that sociological and philosophical enquiries of this kind be neglected, I suggest that a more constructive means of resolving some of the problems encountered in regulating the collection, storage and use of private facts about an individual might be found by seeking to identify what specific interests of the individual we think the law ought to protect. At the core of the preoccupation with the `right to privacy' is protection against the misuse of personal, sensitive information.

 This is not to deny the importance of rights or even their formulation in broad terms which facilitate their recognition by the common law; however, as one American commentator has recently acknowledged, `a natural "right" to privacy is simply inconceivable as a legal right - sanctioned perhaps by society but clearly not enforceable by government ... Privacy itself is beyond the scope of law'[17]. By attempting to address the problem of `privacy' as the protection of `personal information', the pervasive difficulties that are generally (and, I believe, mistakenly) forced into the straitjacket of `privacy' might find a less artificial and more effective legal resolution. The concept of `privacy' has become too vague and unwieldy a concept to perform useful analytical work[18]. It has grown into as nebulous a notion as `freedom' (with which it is not infrequently equated) or `autonomy' (with which it is often confused)[19]. This ambiguity has actually undermined the importance of the value of `privacy' and impeded its effective legal protection.

 An acceptable definition of `privacy' remains elusive[20]. Thus, one particularly ubiquitous and influential conception (especially in the legal literature) conceives of `privacy' as a claim: the `claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others'[21]. To regard `privacy' as a claim (or, a fortiori, a right) not only presumes the value of `privacy', but fails to define its content[22] and is well described as a kind of `logical synecdoche'[23] for it is defining the pan by the whole. It would, moreover, include the use or disclosure of any information about an individual. A similar criticism may be levelled at those conceptions of `privacy' as an 'area of life' or a psychological state.

 Westin's definition has, however, exerted even greater influence in respect of its description of `privacy' in terms of the extent to which an individual has control over information about himself or herself[24]. For control over information to be co-extensive with `privacy', an individual would have to be said to have lost `privacy' if he or she is prevented from exercising this control, even if he or she is unable to disclose personal information. This suggests a pre-emptive view of `privacy'[25] by which its value is assumed. Similarly, if I knowingly and voluntarily disclose personal information, I do not thereby lose `privacy' because I am exercising (rather than relinquishing) control. But this sense of control does not adequately describe `privacy', for although I may have control over whether to disclose the information, it may be obtained by other means. And if control is meant in a stronger sense (namely that to disclose information, even voluntarily, constitutes a loss of control because I am no longer able to curtail the dissemination of the information by others), it describes the potential rather than the actual loss of `privacy'. Hence, I may not attract any interest from others and therefore I will be accorded `privacy' whether I want it or not. There is a distinction between my controlling the flow of information about myself and my being known about in fact. In order to establish whether such control actually protects my `privacy', according to this argument, it is also necessary to know, for instance, whether the recipient of the information is bound by restrictive norms.

Furthermore, if `privacy' is regarded as an aspect of control (or autonomy), it is assumed that what is at issue is my freedom to choose `privacy'. But, as suggested above, I may choose to abandon my `privacy'; the control-based definition therefore relates to the question of which choices I exercise rather than the manner in which I exercise them. It is, in other words, a definition which assumes the value of `privacy'.

The features of `privacy'

Considerable disagreement and confusion exist in respect of the features of `privacy'. Thus, Gavison[26], for example, conceives of `privacy' as `limited accessibility' - a cluster of three related but independent components:

(a) secrecy: information known about an individual;

(b) anonymity: attention paid to an individual;

(c) solitude: physical access to an individual.

A loss of `privacy' (as distinct from an infringement of a `right' of `privacy') occurs, in this account, where others obtain information about an individual, pay attention to him or her, or gain access to him or her. The claimed virtues of this approach are, first, that it is neutral, facilitating an objective identification of a loss of `privacy'; secondly, it demonstrates the coherence of `privacy' as a value; thirdly, it suggests the utility of the concept in legal contexts (for it identifies those occasions calling for legal protection); fourthly, it includes `typical' invasions of `privacy' and excludes those issues mentioned above which, though often thought to be `privacy' questions, are best regarded as moral or legal issues in their own right (noise, odours, prohibition of abortion, contraception, homosexuality, and so on).

 Yet even this analysis presents certain difficulties. In particular, in her effort to define `privacy' in such a way as to avoid pre-empting questions as to its desirability, Gavison is driven to rejecting definitions which limit themselves to the quality of the information divulged. She therefore dismisses the view that, to constitute a part of `privacy', the information concerned must be `private' in the sense of being intimate or related to the individual's identity. If a loss of `privacy' occurs whenever any information about an individual becomes known (the secrecy component), the concept loses its intuitive meaning.

 It would appear to be a distortion to describe every instance of the dissemination of information about an individual as a loss of `privacy', yet the requirement of a value-free definition of `privacy' dictates that to confine the ambit of `privacy'-invading conduct to the transfer or communication of `private' information is to invoke a value judgment in respect of the desirability of `privacy'. To the extent, however, that `privacy' is a function of information or knowledge about the individual, this seems to be inevitable. In other words, in so far as the question of information about an individual is concerned, a limiting or controlling factor is required; it is submitted that the most acceptable limiting factor is that the information be `personal'. To claim that whenever an individual is the subject of attention or when access to him is gained he necessarily loses `privacy' is again to divest our concern for `privacy' of much of its intuitive meaning. Having attention focused upon us or being subjected to uninvited intrusions upon our solitude are objectionable in their own right, but our concern for the individual's `privacy' in these circumstances is strongest when he or she is engaged in activities which we would normally consider `private'. The Peeping Tom is more likely to affront our conception of what is `private' than someone who follows an individual in public.

The coherence of `privacy'

Apart from its utility or application as a legal concept, the coherence of the very idea of `privacy' is suspect. This is evident in two respects. First, it is sometimes argued that by protecting the values underpinning `privacy' (property rights, human dignity, preventing or compensating the infliction of emotional distress, etc.), moral and legal discourse concerning `privacy' may be dispensed with. This essentially reductionist argument obviously has its major purchase in relation to the need for the legal protection of `privacy'. But if it can be demonstrated that the concept is largely parasitic, that its protection may be secured by safeguarding other (primary) interests, its conceptual distinctiveness is thrown into considerable doubt. Secondly, even among those who deny the parasitical character of `privacy', there is little agreement concerning its principal defining features.

Again, these concerns are especially important in the context of arguments concerning the legal protection of `privacy'. But it is clear that unless a concept is sufficiently distinctive to facilitate coherent analytical identification and description, the prospects for its satisfactory legal recognition and application are bound to be poor.

 Such problems are not, of course, peculiar to the notion of `privacy'. `Freedom', `security', `liberty' and other values are, to a greater or lesser extent, vulnerable to similar criticism. But unless it is to be argued that subscribing to generalized values exhibits our commitment to them, it seems perverse not to attempt to refine the nature and scope of the problem, especially if this might actually engender more effective protection.

`Privacy' as the protection of `personal information'

Without undermining the significance of `privacy' as a value, a less problematic and more direct method of attempting to resolve the difficulties associated with its protection is to isolate the essential issues that give rise to such claims. Indeed, in view of the confusion that generally afflicts discussions of the concept, there is an overwhelming case for seeking to liberate the subject from the presumptive force of its value-laden starting-point concerning the desirability of `privacy'. If it is replied that it is possible to arrive at a neutral definition of `privacy', it must be said that such attempts inevitably strip the concept of much of its intuitive meaning and explanatory power. Thus to conceive of `privacy' as `limited accessibility' avoids loading the concept with a positive value, but it also results in any loss of solitude by or information about an individual having to be counted as a loss of `privacy'.

 There are, moreover, a number of associated problems that might be obviated by adopting the alternative approach proposed here. In particular, three specific analytical difficulties might be briefly mentioned. First, arguments about the meaning of `privacy' frequently proceed from fundamentally different premises. Thus, for instance, where `privacy' is described as a `right'[27] issue is not seriously joined with those who conceive it to be a `condition'[28]. The former is usually a normative statement about the need for `privacy' (however defined); the latter merely makes a descriptive statement about `privacy'.

 Secondly, claims about the desirability of `privacy' confuse its instrumental and inherent value; `privacy' is regarded by some as an end in itself[29], while others view it as instrumental in the securing of other social ends such as creativity[30], love[31] or emotional release[32]. Thirdly, there is, among discussions of `privacy', a confusion between descriptive accounts especially of the law on the one hand, and normative accounts on the other. A considerable effort has been made in an ultimately futile attempt to reconcile these two fundamentally antagonistic perspectives.

 There is little doubt that originally the `archetypal' complaints in the `privacy' field related to what, in legal terms, have come to be described as `public disclosure of private facts' and `intrusion upon an individual's seclusion, solitude or private affairs'. More recently the subject of the collection and use of computerized personal data has become an important aspect of the discussions of `privacy'[33]. It is clear that, at bottom, these three questions share a concern to limit the extent to which `private facts' about the individual are respectively published, intruded upon or misused. My own view is therefore that a more rational, direct and effective method of seeking to address the central questions of `privacy' is to avoid the conceptual labyrinth that has so far impaired their satisfactory resolution. This is not to suggest that certain conditions (for instance, being alone) or certain activities (such as telephone-tapping) ought not to be characterized as `privacy' or `invasions of privacy' respectively. But, except to describe the underlying value, the term `privacy' ought to be resisted - especially as a legal term of art. It adds little to our understanding either of the interest that it seeks to protect or of the conduct that it is designed to regulate. But, more importantly, eschewing the concept facilitates a clearer analysis of the problems and their possible solution.

 In locating the problems of privacy at the level of personal information, two obvious questions arise. First, what is to be understood by `personal' and, secondly, under what circumstances is a matter to be regarded as `personal'? Is something `personal' by virtue simply of the claim by an individual that it is so, or are certain matters intrinsically personal? The assertion, in other words, that something is `personal' may be norm-dependent or norm-invoking. To claim that my political views are personal must depend on certain norms which prohibit or curtail inquiries into, or unauthorized reports of, such views. It may, however, suffice for me to invoke the norm that I am entitled to keep my views to myself.

 These norms are clearly culture-relative as well as changing. Anthropological evidence suggests that primitive societies have differential `privacy' attitudes. And it can hardly be doubted that in modern societies, conceptions of what is `private' will differ and change. There is certainly less diffidence in most modern communities with regard to several aspects of private life than characterized societies of even 50 years ago. Is there not a class of information that may plausibly be described as `personal'? Normally it is objected that `privateness' is not an attribute of the information itself; that the same information may be regarded as very private in one context and not so private or not private at all in another. Naturally X may be more inclined to divulge intimate facts to his psychiatrist or to a close friend than to his employer or his wife. And his objection to the disclosure of the information by a newspaper might be expected to be even stronger. But the information remains `personal' in all three contexts. What changes is the extent to which he is prepared to permit the information to become known or to be used. It is counter-intuitive to describe the information in the first context (the psychiatrist) as `not private at all' or even `not so private'. We should surely want to say that the psychiatrist is listening to personal facts being discussed. Were the conversation to be surreptitiously recorded or the psychiatrist called upon to testify in court as to his patient's homosexuality or infidelity, we should want to say that personal information was being recorded or disclosed. The context has manifestly changed, but it affects the degree to which it would be reasonable to expect the individual to object to the information being used or spread abroad, not the quality of the information itself.

 Any definition of `personal information' must therefore include both elements. It should refer both to the quality of the information and to the reasonable expectations of the individual concerning its use. The one is, in large part, a function of the other. In other words, the concept of `personal information' postulated here functions both descriptively as well as normatively. Since `personal' relates to social norms, to so describe something implies that it satisfies certain of the conditions specified in the norms, without which the normative implications would have no validity. Thus if a letter is marked `personal' or if its contents clearly indicate that it is personal, the implication is that it satisfies one or more of the conditions necessary for its being conceived as `personal'; this is a descriptive account.

 `Personal information' includes those facts, communications or opinions which relate to the individual and which it would be reasonable to expect him to regard as intimate or sensitive and therefore to want to withhold, or at least to restrict their collection, use or circulation. It might immediately be objected that, by resting the notion of `personal information' on an objective determination of an individual's expectations, the definition is actually an exclusively normative one and therefore pre-empts enquiries concerning the desirability or otherwise of protecting `personal information'. But any attempt to classify information as `personal', `sensitive' or `intimate' proceeds on the assumption that such information warrants special treatment.

To the extent that it is necessary to define the information by reference to some objective criterion (since a subjective test would clearly be unacceptable), it is inevitable that the classification depends on what may legitimately be claimed to be `personal'. Only information which it is reasonable to wish to withhold is likely, under any test, to be the focus of our concern. An individual who regards information concerning say, his car, as personal and therefore seeks to withhold details of the size of its engine will find it difficult to convince anyone that his vehicle's registration document constitutes a disclosure of `personal information'. An objective test of what is `personal' will operate to exclude such species of information.

 But this becomes more difficult where the individual's claim relates to information which affects his `private life'. It would not be unreasonable, for instance, for an individual to wish to prevent the disclosure of facts concerning his trial and conviction for theft. Applying the proposed definition of `personal information' as a first-order test of whether such information is `personal' may suggest that the claim is a legitimate one. But such a claim is likely to be defeated on the ground that the administration of justice is an open and public process. The passage of time may, however, alter the nature of such events and what was once a public matter may, several years later, be reasonably considered as private.

 Similarly, the publication of what was once `public' information garnered from old newspapers may several years later be considered an offensive disclosure of personal information. It does not therefore follow that the objective test pre-empts the `balancing' of the individual's right or claim to withhold `personal information' on the one hand, and the competing interests of the community in, say, freedom of expression on the other. By voluntarily disclosing or acceding to the use or dissemination of personal information, the individual does not relinquish his claim that he retain certain control over it. He may, for instance, allow the information to be used for one purpose (such as medical diagnosis), but object when it is used for another (such as employment).

With regard to opinions about an individual expressed by a third party, the existence of which the individual is aware (such as references sought by him for a job application), it would be reasonable to expect him to permit access to such material only by those who are directly concerned in the decision whether or not to employ him. Where he does not know that assessments have been made about him (where, for example, he is described as a `bad risk' on the computerized files of a credit reference agency) or that his communications have been intercepted or recorded, he may reasonably be expected to object to the use or disclosure (and in the case of surreptitious surveillance, to the actual acquisition) of the information, particularly if it is (actually or potentially) misleading or inaccurate were he aware of its existence. There is naturally a whole range of `items' of `personal information' the use or disclosure of which one might expect individuals to wish to resist. A complete catalogue of such information would be impossible (and probably pointless).

 In seeking to withhold or limit the circulation of `personal information', is the individual not engaged in a form of deception, especially where the information depicts him in an unfavourable light? This is the burden of Posner's application of his `economic analysis of law' to the subject of personal information[34]. As he asserts, `To the extent that people conceal personal information in order to mislead, the economic case for according legal protection to such information is no better than that for permitting fraud in the sale of goods'[35].

 But even if one were to accept the `economic' perspective, it does not follow that one would accept the assessment of the economic `value' of withholding personal information; individuals may be willing to trade off their interest in restricting the circulation of such information against their `societal' interest in its free flow. In other words Posner has not shown, and may be unable to show, that his calculation of `competing' interests is necessarily the correct, or even the most likely, one. This analysis cannot be pursued here, but it is worth noting that Posner's claim that his economic theory `explains' the operation of law produces a certain dissonance if one compares the protection of `privacy' in the US with that prevailing in England.

 Posner also argues that transaction-cost considerations may militate against the legal protection of personal information. Where the information is discrediting and accurate, there is a social incentive to make it generally available: accurate information facilitates reliance on the individual to whom the information relates. It is therefore socially efficient to allow a society a right of access to such information rather than to permit the individual to conceal it. In the case of non-discrediting or false information, the value to the individual of concealment exceeds the value of access to it by the community. Information which is false does not advance rational decision-making and is therefore of little use.

[1] See R Wacks, Personal Information: Privacy and the Law, (Oxford: Clarendon Press, 1989), upon

 which I have drawn extensively here; R Wacks, The Protection of Privacy (London: Sweet & Maxwell,

 1980); R Wacks, `The Right to Privacy' in Human Rights in Hong Kong (Hong Kong: Oxford

 University Press, 1992).

[2] The present Chief Justice of the US Supreme Court acknowledged this almost two decades ago: see

 W Rhenquist, `Is an Expanded Right of Privacy Consistent with Fair and Consistent Law Enforcement?

 Or Privacy, You've Come a Long Way, Baby' (1974) 23 Kansas Law Review 1.

[3] S D Warren and L D Brandeis, `The Right to Privacy' (1890) 4 Harvard Law Review 193. For recent

 examinations of the development of their (fairly limited) tort, see R C Post, `Rereading Warren and

 Brandeis: Privacy, Property, and Appropriation' (1991) 41 Case Western Reserve Law Review 647;

 S W Halpern, `The "Inviolate Personality" - Warren and Brandeis After One Hundred Years' (1990) 10

 Northern Illinois University Law Review 387.

[4] See M A Fineman, `Intimacy Outside of the Natural Family' (1991) 23 Connecticut Law Review 955;

 E M Schneider, `The Violence of Privacy' (1991) 23 Connecticut Law Review 973; A L Allen and E

 Mack, `How Privacy Got Its Gender' (1990) 10 Northern Illinois University Law Review 441. See

 generally, C Mackinnon, Towards a Feminist Theory of the State (1989).

[5] The Supreme Court's recent decision in Planned Parenthood v Casey 112 S Ct 2791 (1992) to affirm its

 judgment in Roe v Wade 410 US 113 (1973) plainly reflects a fundamental division in American

 society on the question of abortion. Justice Scalia's scathing assault on the majority judgment bears

 ample testimony to the strength of feelings on the issue. See John Hart Ely, `The Wages of Crying Wolf:

 A Comment on Roe v Wade' (1973) 82 Yale Law Journal 920: R G Morgan, `Roe v Wade and the

 Lesson of the Pre-Roe Case Law' (1979) 77 Michigan Law Review 1724; T Huff, `Thinking Clearly

 about Privacy' (1980) 55 Washington Law Review 777.

[6] Following the Supreme Court's decision in Griswold v Connecticut 381 US 479 (1965). See

 S Schnably, `Beyond Griswold: Foucauldian and Republican Approaches to Privacy' (1991) 23

 Connecticut Law Review 861.

[7] The Supreme Court's decision in Bowers v Hardwick 468 US 186 (1986) generated considerable

 criticism. For a vigorous attack on the majority's reasoning in this case and in Thornburgh v American

College of Obstetricians and Gynecologists (invalidating certain provisions relating to abortion on the

 ground that they burdened the constitutional right of privacy) see D A J Richards, `Constitutional

 Legitimacy and Constitutional Privacy' (1986) 61 New York University Law Review 800; A T

 Sheppard, `Private Passion, Public Outrage: Thoughts on Bowers v Hardwick' (1988) 40 Rutgers Law

 Journal 521. See too K Thomas, `Beyond Privacy' (1992) Columbia Law Review 1431. Frank

 Michelman develops a `republican, anti-authoritarian' case and Rubenfeld constructs an `anti-

 totalitarian' argument to refute the majority's judgment. See Frank Michelman, `Law's Republic' (1988)

 Yale Law Journal 1493; Jed Rubenfeld, `The Right of Privacy' (1989) 102 Harvard Law Review 737.

 For Thomas neither of these positions is able to `yield a sufficiently concrete understanding of the

 political practices that intersect the law of homosexuality' (1498). Thomas acknowledges that the

 concept of `privacy' provides an inadequate basis on which to protect the rights of the homosexual and

 lesbian community against homophobic violence.

[8] See Stanley v Georgia 394 US 557 (1969).

[9] See E Campbell, `Mandatory AIDS Testing and Privacy: A Psycholegal Perspective' (1990) 66 North

 Dakota Law Review 449; R Turkington, `Confidentiality Policy for HIV-Related Information: An

 Analytic Framework for Sorting Out Hard and Easy Cases' (1989) 34 Villanova Law Review 871;

R Wacks, `Controlling AIDS: Some Legal Issues' (1988)138 New Law Journal 254, 283.

[10] See A H Saxonhouse, `Classical Greek Conceptions of Public and Private' in S I Benn and G F Gaus

 (eds), Public and Private in Social Life (London: Croom Helm and St Martin's Press, 1983), p 380;

 D Hanson, From Kingdom to Commonwealth: The Development of Civic Consciousness in English

Political Thought (Cambridge, Mass: Harvard University Press, 1970), pp 1-19, quoted by M J

 Horwitz, `The History of the Public/Private Distinction' (1982) 130 University of Pennsylvania Law

 Review, 1423; H Arendt, The Human Condition (Chicago: University of Chicago Press, 1958), p 38ff.

[11] J Appleby, Economic Thought and Ideology in Seventeenth Century England (Princeton, NJ: Princeton

 University Press, 1978) pp 62-3, quoted by Horwitz, `The History of the Public/Private Distinction', see

 note 10 above.

[12] See R H Mnookin, `The Public/Private Dichotomy: Political Disagreement and Academic Reputation'

 (1982) 130 University of Pennsylvania Law Review 1429.

[13] F Tonnies, Gemeinschaft und Gesellschaft, trans C P Loomis (1955), Community and Association, East

 Lansing, (Mich : Michigan State University Press, 1887).

[14] S Lukes, Individualism (Oxford: Basil Blackwell, 1973), p 62. See too E Kamenka, `Public/Private in

 Marxist Theory and Marxist Practice' in Benn and Gaus, Public and Private in Social Life, pp 267,

 273-4 (see note 10 above).

[15] Horwitz, `The History of the Public/Private Distinction', pp 1423, 1424 (see note 10 above).

[16] This is illustrated by the Hart/Devlin debate concerning, in particular, the issue of homosexual acts

 between consenting adults. The liberal position is, of course, exemplified by the Wolfenden Report

 (Report of the Committee on Homosexual Offences and Prostitution, Cmnd 247, l957), which based

 itself on J S Mill's `harm principle' expressed in On Liberty (1859). See too the Report of the

Committee on Obscenity and Film Censorship (chairman: Bernard Williams) Cmnd 7772, 1979.

[17] R F Hixson, Privacy in a Public Society: Human Rights in Conflict (New York, Oxford: Oxford

 University Press, 1987), p 98.

[18] For an early expression of these difficulties, see F Davis, `What Do We Mean by "Right to Privacy"?'

 (1959) 4 South Dakota Law Review 1.

[19] For an attempt to derive the right to privacy from the `moral principle ... of respect for individual

 liberty' see R B Hallborg, `Principles of Liberty and the Right to Privacy' (1986) 5 Law and Philosophy


[20] `[A]s a descriptive or analytic term, "right to privacy" is virtually meaningless.' Dianne L Zimmerman,

 `Requiem for a Heavyweight: A Farewell to Warren and Brandeis's Privacy Tort' (1983) 68 Cornell

 Law Review 291, 299.

[21] A Westin, Privacy and Freedom (London: Bodley Head), p 7.

[22] See D N McCormick, `Privacy: A Problem of Definition' (1974) 1 British Journal of Law & Society 75.

[23] T Gerety , `Redefining Privacy' (1977) Harvard Civil Rights-Civil Liberties Law Review 233.

[24] See, for instance, Charles Fried, `Privacy' (1968) 77 Yale Law Journal 482; R Parker, `A Definition of

 Privacy' (1974) 27 Rutgers Law Review 275, 280-81; A Miller, The Assault on Privacy (Ann Arbor:

 The University of Michigan Press, 971), p 25; E L Beardsley, `Privacy: Autonomy and Selective

 Disclosure' in J R Pennock and J W Chapman (eds) (1971), Privacy, Nomos, XIII 56, 70; E Shils,

 `Privacy: Its Constitution and Vicissitudes' (1966) 31 Law & Contemporary Problems 281; Hyman

 Gross, `The Concept of Privacy' (1967) 42 New York University Law Review 475.

[25] Ruth Gavison, `Privacy and the Limits of Law' (1980) 89 Yale law Journal 421.

[26] Ibid.

[27] The Report of the Committee on Privacy (chairman: K Younger) Cmnd 5012, 1972, confused `rights'

 and `liberties': D N McCormick, `Right of Privacy' (1973) 89 Law Quarterly Review 23; id `Privacy:

 A Problem of Definition'. Compare N Marsh, `Hohfeld and Privacy' (1973) 89 Law Quarterly Review


[28] L Lusky, `Invasion of Privacy: A Clarification of Concepts' (1972) 72 Columbia Law Review, 693,

 709; Michael A Weinstein, `The Uses of Privacy in the Good Life' (1971) Nomos XIII 27.

[29] Beardsley, see note 24 above; S I Benn, `Privacy, Freedom and Respect for Persons', (1971) Nomos

 XIII, 1.

[30] M A Weinstein, see note 28 above.

[31] C Fried, An Anatomy of Values: Problems of Personal and Social Choice (Cambridge, Mass: Harvard

 University Press).

[32] Westin, note 21 above, p 33.

[33] See David H Flaherty, `On the Utility of Constitutional Rights to Privacy and Data Protection' (1991)

 41 Case Western Reserve Law Review 831; S Simitis, `Reviewing Privacy in an Information Society'

 (1987) 135 University of Pennsylvania Law Review 707.

[34] Though he employs (with little clarity) the term `privacy', Richard Posner (rightly, it is submitted)

 concentrates his attention on the question of personal information. See Richard A Posner, `The Right of

 Privacy' (1978) Georgia Law Review 393; `An Economic Theory of Privacy' in Schoeman (ed),

 Philosophical Dimensions of Privacy; R A Epstein, `A Taste for Privacy? Evolution and the

 Emergence of a Naturalistic Ethic' (1980) 9 Journal of Legal Studies 665. Cf C E Baker, `Posner's

 Privacy Mystery and the Failure of the Economic Analysis of Law', (1978) 12 Georgia Law Review,

 475; E J Bloustein, Privacy is Dear at any Price: A Response to Professor Posner's Economic Theory'

 (1978) 12 Georgia Law Review 429.

[35] Posner, see note 34 above, 401.