Privacy revisited : a global perspective on the right to be left alone / Ronald J. Krotoszynski, Jr.
2016
K3263 .K76 2016 (Map It)
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Title
Privacy revisited : a global perspective on the right to be left alone / Ronald J. Krotoszynski, Jr.
Published
Oxford, UK ; New York, NY : Oxford University Press, [2016]
Call Number
K3263 .K76 2016
ISBN
9780199315215 (hardback ; alk. paper)
0199315213 (hardback ; alk. paper)
0199315213 (hardback ; alk. paper)
Description
xx, 292 pages ; 25 cm
System Control No.
(OCoLC)922799536
Summary
Rapid technological change, the advent of Big Data, and the creation of society-wide government surveillance programs have transformed the accessibility of highly personal information; these developments have highlighted the ambiguous treatment of privacy and personal intimacy. National legal systems vouchsafe and define "privacy," and its first cousin "dignity," in different ways that reflect local legal and cultural values. Yet, in an increasingly globalized world, purely local protection of privacy interests may prove insufficient to safeguard effectively fundamental autonomy interests - interests that lie at the core of self-definition, personal autonomy, and freedom.
Bibliography, etc. Note
Includes bibliographical references (pages 189-284) and index.
Record Appears in
Table of Contents
Preface
xi
Acknowledgments
xix
1.
Introduction
Prolegomenon to Privacy: On the Potential Virtues and Benefits of a Comparative Legal Analysis of the Right to Be Left Alone
1
Introduction
1
I.
Problem of Denning Privacy
2
II.
Salience of Privacy in the United States
5
III.
Need for a Global Perspective on Privacy: Greater Transnational Agreement on the Meaning and Scope of Privacy Would Help to Better Secure Both Privacy Interests and Commonly Conflicting Values Such as Free Speech and Press Rights
9
IV.
Brief Explanation of the Comparative Legal Analysis of Privacy That Follows
12
Conclusion
14
2.
United States
Polysemy of Privacy: An Analysis of the Many Faces and Facets of the Right of Privacy in the Contemporary United States
15
Introduction
15
I.
Privacy as Nondisclosure, Autonomy, and Dignity
19
II.
Privacy in the United States and the Troublesome Public/Private Dichotomy
22
III.
U.S. Free Speech Exceptionalism: Fundamental Rights Giving Rise to Fundamental Disagreements
25
IV.
Privacy's Nomenclature in the United States: "Privacy" Rather than "Dignity"
30
Conclusion
36
3.
Canada
Privacy in Canada: Taming a Notoriously Protean Legal Concept with a Coherent and Purposive Approach
39
Introduction
39
I.
Privacy and the Canadian Charter of Rights and Freedoms
41
A.
Canadian Courts and the Power of Judicial Review
42
B.
Privacy and the Charter: The Relevant Charter Provisions
44
C.
Limitations on Charter Rights (Including Privacy)
45
II.
Constitutional Privacy Law Under the Charter
48
A.
Doctrinal Framework Governing Canada's Right of Privacy
48
B.
Theoretical Contours of Canadian Privacy Jurisprudence
60
1.
Normative Values, Not Objective Values, Control the Scope of Privacy
60
2.
Property Ownership Is Not a Prerequisite to Possessing a Reasonable Expectation of Privacy
61
3.
Openness to Considering the Relevance of Technological Change
62
4.
Reconsidering the Viability of Privacy as Useful Legal Concept
64
III.
Reconciling Privacy Interests with Speech and Press Freedoms
65
IV.
Resistance, Convergence, and Engagement in the Canadian Law of Privacy
69
A.
Defining Resistance, Convergence, and Engagement
69
B.
Theory Applied: Resistance, Convergence, and Engagement in Canadian Constitutional Privacy Law
70
Conclusion: The Centrality of Privacy in Canadian Constitutional Jurisprudence
71
4.
Republic of South Africa
Privacy in South Africa: Deploying Dignity, Equality, and Freedom to Safeguard the Process of Democratic Self-Government
75
Introduction
75
I.
South Africa's Peaceful Constitutional Revolution: From Herrenvolk Democracy to Constitutional Democracy
80
A.
Apartheid, Parliamentary Sovereignty, and South Africa's First Three Constitutions: The Constitutions of 1910, 1961, and 1983
80
B.
Break with Parliamentary Sovereignty in Favor of Judicial Review and Entrenched Human Rights: The 1993 Interim Constitution and the 1996 Constitution
85
C.
Values Animating the 1996 Constitution: Dignity, Equality, and Freedom
87
D.
Constitution's Protection of Privacy Rights
88
II.
Privacy as Dignity in the Jurisprudence of the Constitutional Court of South Africa
93
III.
South Africa's Prioritizing of Constitutional Privacy Values Constitutes an Intentional and Entirely Understandable Effort to Break Effectively and Cleanly with the Apartheid Era and Its Deeply Flawed Racialist Constitutionalism
110
Conclusion
112
5.
United Kingdom Privacy in the United Kingdom: On the Perils and Promise of Weak-Form Judicial Review in Securing Privacy Rights
115
Introduction
115
I.
Unwritten Constitution and the Doctrine of Parliamentary Sovereignty
117
II.
Absence of Any Generalized Right of Privacy in Contemporary British Law
120
A.
Parliament's Rejection of a Statutory Right of Privacy
121
B.
Human Rights Act 1998 and the Right of Privacy
123
C.
Judiciary's Continuing Rejection of a Generalized Right of Privacy in the Post-HRA Era
125
III.
Underlying Reality: Privacy in Some Contexts, But Not Others
131
IV.
Reconsidering the Proper Role of the Judiciary in Recognizing and Enforcing Fundamental Rights
132
Conclusion
141
6.
European Court of Human Rights Privacy Rights in Europe: Reconciling Privacy and Speech in the Era of Big Data
143
Introduction
143
I.
European Court of Human Rights and Transatlantic Conflicts About the Meaning and Scope of Privacy
145
II.
Europe and Privacy: Exploring Salient Points of Conflict with the United States
147
A.
Balancing and Proportionality
148
B.
Privacy as a Positive Right
150
C.
Scope of Privacy Rights and Mandatory Civility Norms
151
1.
Privacy and Place
152
2.
Privacy and Persons
154
3.
Privacy and the Potential Scope of Protected Materials
156
a.
Right to Control One's Image and Personal Data
156
b.
Mandatory Civility Norms Limiting the Use of Opprobrious or Insulting Language in Public
157
III.
Important Shared Values Exist Between the United States and Europe Concerning Both Privacy and Speech
160
IV.
Right of Privacy Going Forward: Challenges and Issues in the Era of Big Data
166
Conclusion
171
7.
Conclusion
Bringing Meiklejohn to Privacy: On the Essential Complementarity of Privacy and Speech
273
Introduction
273
I.
Meiklejohn's Democratic Self-Government Theory of Freedom of Expression
275
A.
Exploring Meiklejohn's Theory of Freedom of Expression
276
B.
Robert Bork's Narrow Interpretation of Meiklejohn's Theory
277
C.
Necessary Relationship of Intellectual Freedom and Democracy: From Jefferson to Meiklejohn
278
II.
Privacy, Like Speech, Relates to the Process of Democratic Self-Government
280
A.
Speech, Cognition, and Thought
280
B.
Necessary and Essential Relationship Among Privacy, Speech, and Democracy
282
III.
Privacy and Speech: Both Conflicting and Complementary Human Rights
282
IV.
On the Potential Relevance of Comparative Law to Reconciling Privacy and Speech
283
Conclusion
287
Notes
289
Index
295