Abstract
This paper draws upon contemporary feminist philosophy in order to consider the changing meaning of privacy and its relationship to identity, both online and offline. For example, privacy is now viewed by European Court of Human Rights (ECtHR) as a right, which when breached can harm us by undermining our ability to maintain social relations. I briefly outline the meaning of privacy in common law and under the European Convention on Human Rights (ECHR) in order to show the relevance of contemporary feminist thought, in particular the image of selfhood that stresses its relationality. I argue that the meaning of privacy is in the process of altering as a result of a number of contingent factors including both changes in technology, particularly computer mediated communication (CMC), and changes in the status of women. This latter point can be illustrated by the feminist critique of the traditional reluctance of the liberal state to interfere with violence and injustice within the “privacy” of the home. In asking the question: “how is the meaning of “privacy” changing?” I consider not only contemporary legal case law but also Thomas Nagel’s influential philosophical analysis of privacy. Nagel’s position is useful because of the detail with which he outlines what privacy used to mean, whilst bemoaning its passing. I agree with his view that its meaning is changing but am critical of his perspective. In particular, I challenge his claim regarding the traditional “neutrality of language” and consider it in the context of online identity.
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Notes
Online selves could now be added to this list as there is no reason to assume that these are any less “me” than my bank account. I will discuss online identity below.
For a useful examination of Eastern approaches to the self in the context of privacy see Hongladarom (2009).
For a discussion of different concepts of self within the social contract tradition see Richardson (2009).
For a critique of this market-orientated approach to privacy see Floridi (2006, 115–116). For a broader critique of the political implications of this view of ourselves as owners of “property in the person” such that aspects of ourselves are treated as commodities in a market see Marx (2004, 280), Pateman (2002), Cohen (1995).
Argyll v Argyll [1967] 1 Ch. 302.
Giller v Procopets [2008] VSCA 236. Depending on the jurisdiction, the civil courts (compared with criminal) allow the woman, if she can fund it, to get to court quickly for an injunction, keeping greater control of proceedings, to join a internet provider in the same proceedings to expedite the removal of the image and to go for damages. The burden of proof is on the balance of probabilities so it is also easier to prove fault.
Wainwright v Home Office [2002] Q.B. 1334. Note ECtHR disapproval of the UK failure to provide a remedy to this unlawful strip search in breach of prison rules, prior to the enactment of HRA, in Wainwright v UK (2006) 156 N.L.J. 1524.
The House of Lords had already moved in this direction in the pre-HRA case Attorney General v Guardian Newspapers (No 2) [1990] 1 AC 109 “Spycatcher Case”. There was no relationship between the defendant newspaper and the claimant but the information concerned official secrets. For the House of Lords, this was sufficient to grant an injunction initially (until the information was too widely available to be viewed as confidential).
Campbell v Mirror Group Newspapers [2004] 2 AC 457.
Max Mosley v News Group Newspapers [2008] EWHC 1777.
Author of a Blog v Times Newspapers Ltd [2009] EWHC 1358 (QB).
Sheffield Wednesday Football Club Ltd v Hargreaves [2007] EWHC 2375 (QB).
Peck –v- UK [2003] EMLR 15.
Doe v Australian Broadcasting Corporation & Ors [2007] VCC 281.
For a discussion of the way in which “fractured identity is core to Lacanian psychoanalysis” see, for example Elliott and Frosh (1995, 238).
Foucault (1990) famously argues that “we other Victorians” have not kept quiet about sex and that our discourse around it is productive of “who we are”. However, his analysis of the confessional and “psy professions”, does not undermine Nagel’s sketch of manners and conception of privacy, which affords insight into a way of life that is being lost.
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Richardson, J. The Changing Meaning of Privacy, Identity and Contemporary Feminist Philosophy. Minds & Machines 21, 517–532 (2011). https://doi.org/10.1007/s11023-011-9257-8
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DOI: https://doi.org/10.1007/s11023-011-9257-8