The Protection of Privacy between a Rights-Based and a Freedom-Based Approach: What the Swiss Example Can Teach us
| Author | Koen Lemmens |
| Published date | 01 December 2003 |
| Date | 01 December 2003 |
| DOI | http://doi.org/10.1177/1023263X0301000403 |
| Subject Matter | Article |
Koen Lemmens∗
10 MJ 4 (2003) 381
The Protection of Privacy between a Rights-Based and a
Freedom-Based Approach: What the Swiss Example can
teach us
Summary
There has been a fierce debate amongst scholars about the way privacy ought to
be protected in civil law countries. The key issue at stake is the question whether
this protection should be implemented via so-called ‘personality rights’ (i.e. a
special category of subjective rights) or whether it would be more appropriate to
conceive privacy in terms of fundamental freedoms. It goes without saying that
this choice entails important practical and theoretical consequences.
In this article, I will first try to summary the different viewpoints, indicating each
time the pros and contras. Then, I will deal with the Swiss way of privacy
protection, for I believe that it shows clearly that the sketched ‘doctrinal’
opposition should not be overestimated and that it should be possible to
conciliate the two approaches to privacy.
§ 1. Introduction
‘Un homme est toujours la proie de ses vérités’
- A. Camus, Le mythe de Sisyphe.1
∗ PhD (European University Institute, Florence); Guest Professor Comparative Law at VU Brussel;
Attorney at the Brussels bar. Comments on this article can be sent to: koen.lemmens@eubelius.com
1. A. Camus, ‘Le mythe de Sisyphe’, in A. Camus, Essais (Collection de la Pléiade), (Gallimard, 1965),
121.
The Protection of Privacy between a Rights-Based and Freedom-Based Approach
382 10 MJ 4 (2003)
When, more than hundred years ago, Samuel Warren and Louis Brandeis published
their famous article on privacy in the Harvard Law Review, they could not foresee that
it would become a milestone in legal scholarship and that, more than a century later, it
would still offer a solid basis for doctrinal debates.2 In any event, both authors are
credited with the first definition of the concept of privacy, which they conceived as ‘the
right to be let alone.’3
Since then, things have changed but the article is still worth reading, inter alia for
purely anecdotal reasons. Warren’s wife, an emblematic member of the Boston upper
class, was a victim of outrageous media attention and she wanted to protect her privacy
against this intrusive journalism. In order to help her, Warren and Brandeis wrote their
article, in which they made a case for the better protection of individuals against the
press. They grounded their claim on a right that they called the ‘right to privacy’.
At this point, we might have a closer look at two considerations. In the first place, it
should be noted that conflicts between the disclosure of private facts and the freedom of
the press lead directly to the elaboration of the legal protection of privacy. Although, we
tend to believe that these tensions are recent phenomena, history shows us that this is
not the case.
Second, the context reveals a great deal about the social background of the original
privacy concept. Indeed, the right to be left alone is enshrined in a bourgeois and
aristocratic society and was only meant to protect ‘persons in the picture’, such as stars
and celebrities. As such, it did not represent any interest for the unknown masses.4
Indeed, Warren’s and Brandeis’ right to privacy could only emerge in a ‘suspicious’
society that cherishes the private sphere and abhors the public sphere – one that favours
withdrawal rather than solidarity, and that purports a solitary concept of man, rather
than a socially embedded one.5 In other words, it is society that determines the content
of the concept of privacy and, inevitably, changes in the social context have immediate
repercussions on the way in which privacy is conceived. The need to contextualize the
2. S. Warren and L. Brandeis, ‘The Right to Privacy’, 4 Harvard Law Review (1890), 193-220; reprinted
in F. Schoeman (ed.), Philosophical Dimensions of Privacy: An Anthology, (Cambridge University
Press, 1984), 75-103. I used this reprinted version.
3. It should be noted, however, that Warren and Brandeis did not invent this definition. As a matter of
fact, they owed it to judge Cooley, as they indicated themselves in their article. See: S. Warren and L.
Brandeis, in F. Schoeman (ed.), Philosophical Dimensions of Privacy: An Anthology, 76.
4. A. Clemente, ‘Privacy e nuovi paradossi’, in A. Clemente, Privacy (a cura di Agostino Clemente),
(Cedam, 1999), 3. See also for France: D. Amson, ‘Note’, Gazette du Palais 128-131 (2002), 20-23:
‘Ce sont ces personnes (celebrities, K.L.) – et non le simple quidam – qui ont entraîné l’adoption, dans
le Code civil, d’un article protégeant la vie privée.’
5. S. Gutwirth, Privacy and the Information Age, (Lanham, Rowman & Littlefield Publishers, 2001), 51.
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