A Behavioural Understanding of Privacy and its Implications for Privacy Law
| DOI | http://doi.org/10.1111/j.1468-2230.2012.00925.x |
| Date | 01 September 2012 |
| Published date | 01 September 2012 |
A Behavioural Understanding of Privacy and its
Implications for Privacy Law
Kirsty Hughes*
This article draws upon social interaction theory (the work of Irwin Altman) to develop a theory
of the right to privacy,which reflects the way that privacy is experienced. This theory states that
the right to privacy is a right to respect for barr iers, and that an invasion of privacy occurs when
a privacy barrier is penetrated. The first part of the paper establishes the position of the author’s
theory in the existing scholarship. The second part of the paper expands upon the theory to
explain the nature of privacy barriers and the way that the author’s theory manages a number of
specific privacy issues, including threats to privacy, attempted invasions of privacy, unforeseeable
interferences with privacy and waiving the right to privacy.The final part of the paper demon-
strates the impact that this approach to privacy could have upon judicial reasoning,in particular
Article 8 European Convention on Human Rights.
INTRODUCTION
To be in a position to develop effective privacy laws it is essential that we have
a thorough understanding of the nature and significance of privacy. Despite
having captured the interest of numerous scholars across a wide range of disci-
plines and being the subject of a significant and rich body of literature, its nature
remains nebulous and opaque. Privacy is a multi-faceted concept which derives
its meaning in particular situations from the social context and the ways in which
people experience and respond to those situations. A rounded understanding of
privacy cannot be found in a purely legal or philosophical ‘definition’; it is
necessary to draw upon the insights of other disciplines, and a core weakness in
much privacy scholarship has been the failure to do so.In 2007, the New Zealand
Law Commission noted that ‘it is regrettable that the concept of privacy has not
been treated as multi-disciplinary (encompassing fields of philosophy, political
theory,policy studies, historical and cultural studies) as much as it ought to have
been in some legal literature.’1A survey of the existing literature indicates that
*Turpin-Lipstein Lecturer in Lawand Fellow,Clare College, University of Cambridge.I would like to
thank Dr Jens Grossklags,David Howarth, Angus Johnston, Dr Daniel Joyce, DrAlex Mills, Dr Nicole
Moreham, Professor Gavin Phillipson, Professor Neil Richards, Professor Jane Stapleton and Dr Brian
Sloan,for their invaluable comments on earlier drafts of this paper.Particular thanks must go to Professor
David Feldman QC.Versions of this paper werepresented at the Privacy Law Scholars Conference 2010
(3 June 2010, GeorgeWashington University,Washington DC), the Society for Legal Scholars Con-
ference 2010 (15 September 2010,University of Southampton) and the Goodhart Seminar Ser ies 2012
(9 February 2012, University of Cambridge).I am extremely grateful to the organisers and par ticipants
of those conferences. I would also like to thank the anonymous reviewers whose comments were
extremely helpful.Any remaining errors in the paper are of course my own.
1 New Zealand Law Commission, A Conceptual Approach To Privacy MP19 (Wellington: NZLC,
2007) [45].
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© 2012The Author.The Modern Law Review © 2012 The Modern Law ReviewLimited. (2012) 75(5) MLR 806–836
Published by BlackwellPublishing, 9600 Garsington Road, Oxford OX42DQ, UK and 350 Main Street, Malden,MA 02148, USA
whilst some theories have drawn upon philosophy2and some aspects of sociol-
ogy3and anthropology,4the insights of other disciplines have been neglected.5
This article seeks to remedy this omission by drawing upon social interaction
theory to develop a theory of the right to privacy.By drawing upon this literature
and adopting a behavioural approach to privacy, we can better understand how
privacy is experienced; the different types of privacy that we experience; when an
invasion of privacy occurs and the social benefits of privacy.
In essence, this article claims that privacy plays a crucial role in facilitating
social interaction and that an individual or group experiences privacy when
he, she or they successfully employ barriers to obtain or maintain a state of
privacy. Under this approach, an invasion of privacy occurs when those barriers
are breached and the intruder obtains access to the privacy-seeker. The first
half of the article sets out the details of the theory, explaining how it differs
from existing theories, and how it deals with a number of crucial complex
problems. The second half of the article reflects on the implications of
this analysis for privacy law, in particular: the reasonable expectation of
privacy test as used under Article 8 of the European Convention on Human
Rights (ECHR) and the law of misuse of private information; the concept of
waiver; and the balancing of competing r ights and interests.
A BEHAVIOURAL UNDERSTANDING OF PRIVACY AS A RIGHT
TO RESPECT FOR BARRIERS
Relationship between this theory and the existing literature
Those who have sought to develop privacy laws have been tormented by
the task of identifying which interests privacy laws should protect. This is
2 Examples include: D. Feldman,‘Secrecy,Dignity or Autonomy?Views of Privacy as a Civil Liberty’
(1994) 47 CLP 41; and R. Gavison,‘Privacy and the Limits of the Law’(1980) 89 Yale LJ 421.For
an example of an article in which a philosopher considers legal analyses of privacy see W.A.Parent,
‘Privacy,Morality and the Law’ (1983) 12 Philosophy and Public Affairs 269.
3 The sociologist Erving Goffman’s work has featured in the literature: E. Goffman,The Presentation
of Self in Everyday Life (London: Penguin, 1990).
4 B. Moore Jr, Studies in Social and Cultural History (NewYork: Sharpe, 1984).
5 The philosopher Ferdinand Schoeman used psychology to develop his theory of privacy:
F. D. Schoeman, Privacy and Social Freedom (Cambridge: CUP, 1992). Researchers in the behav-
ioural sciences have shown greater interest than lawyers in interdisciplinary research into privacy.
See M. A. Small and R. L. Wiener, ‘Rethinking Privacy Torts: A View Toward a Psycholegal
Perspective’ in D.K. Kagehiro and W. S. Laufer (eds), Handbook of Psychology of Law (New York:
Springer-Verlag, 1991); D. K. Kagehiro, R. B. Taylor and A. T. Harland, ‘Reasonable Expecta-
tions of Privacy and Third Party Consent Searches’ (1991) 15 Law and Human Behaviour 121;D.
M. Pederson, ‘Dimensions of Privacy’ (1979) 48 Perceptual and Motor Skills 1291; D. M. Peder-
son, ‘Psychological Functions of Privacy’ (1997) 17 Journal of Environmental Psychology 147; and
D. M. Pederson, ‘Model for Types of Privacy by Privacy Functions’ (1999) 19 Journal of Envi-
ronmental Psychology 397. Nevertheless, the scope of the existing research is highly limited: see
G. Melton,‘Minors and Pr ivacy;Are Legal and Psychological Concepts Compatible?’ (1983) 62
Nebraska Law Journal 455, 456–457.
Kirsty Hughes
© 2012 TheAuthor.The Moder n Law Review© 2012 The Modern Law Review Limited. 807
(2012) 75(5) MLR 806–836
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