McGill Law Journal ~ Revue de droit de McGill
PRIVACY AND PRIVATE LAW:
THE DILEMMA OF JUSTIFICATION
Lisa M. Austin*
In recent years there has been a remark-
able convergence across several common law ju-
risdictions regarding the need to recognize some
form of a tort of invasion of privacy, particularly
with respect to the publication of private facts.
Despite this convergence, the author argues
that there remains a palpable containment
anxiety at play in the jurisprudence that is re-
sponsible for a number of recurring tensions re-
garding the scope of protection.
Instead of focusing on the question of how
to define privacy, this paper frames the con-
tainment anxiety at issue in the cases in terms
of a justificatory dilemma rather than a defini-
tional one. Using the work of Mill and Kant, the
author argues that if we understand privacy
rights as protecting either the value of auton-
omy or freedom from harm then we can justify a
narrow legal right to privacy. Although this can
explain the containment anxiety in the juris-
prudence, it severely undermines the growing
recognition of the importance of privacy. There-
fore this paper proposes an alternative justifica-
tion for privacy rights that is rooted in the value
of protecting identity interests, where identity
is understood in terms of one’s capacity for self-
presentation.
On assiste depuis quelques annes une
convergence remarquable travers plusieurs ju-
ridictions de common law quant au besoin de re-
connatre une forme de dlit datteinte la vie
prive, plus particulirement en ce qui a trait la
publication de faits privs. Malgr cette conver-
gence, lauteur maintient quil existe toujours un
certain malaise quant aux limites imposer
aux mesures de protection. Ce malaise, qui se fait
sentir dans la jurisprudence, est responsable de
certaines tensions rcurrentes quant ltendue
de la protection accorder la vie prive.
Plutt que de se concentrer sur une dfinition
de la vie prive, cet article prsente le malaise
dont il est question dans les arrts en termes dun
dilemme de justification plutt que de dfinition.
En se basant sur les travaux de Mill et de Kant,
lauteur fait valoir que si nous entendons le droit
la vie prive comme protgeant soit lautonomie,
soit lexemption du mal, il est alors possible de jus-
tifier un droit troit la vie prive. Si cette ap-
proche peut expliquer le malaise ressenti dans la
jurisprudence, elle mine svrement limportance
croissante qui est accorde la vie prive. Cet es-
sai propose donc une justification alternative du
droit la vie prive qui se fonde sur limportance
de protger les intrts identitaires, o lidentit
est
capacit
la
dautoreprsentation dune personne.
termes de
conue
en
* Associate Professor, University of Toronto Faculty of Law. I would like to thank Ronald
Dworkin, Tom Nagel, and the participants of the New York University School of Law
Colloquium in Legal, Political and Social Philosophy for their many helpful comments
on an earlier draft of this paper. Similarly, I would like to thank Bruce Chapman,
David Dyzenhaus, Arthur Ripstein, Ernie Weinrib, and participants in the Faculty
Workshop at the University of Toronto Faculty of Law for their comments on earlier
versions of this work. Portions of this work were also presented at The Revealed I con-
ference, University of Ottawa Faculty of Law (2007). Finally, I would like to thank my
research assistant, Zvi Halpern, for research relating to privacy and identity, and Bor-
den, Ladner and Gervais for their generous assistance through the BLG Grant pro-
gram.
Citation: (2010) 55 McGill L.J. 165 ~ Rfrence : (2010) 55 R.D. McGill 165
Lisa M. Austin 2010
166 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
Introduction
I. Unravelling the Tort Claim
A. Recognition of the Tort
B. Substance of the Action
II.
The Justificatory Dilemma
A. The Harm Argument
B. The Coercion Argument
III.
Alternatives: Identity versus Authenticity
Conclusion
167
169
170
175
185
188
193
199
209
PRIVACY AND PRIVATE LAW: THE DILEMMA OF JUSTIFICATION 167
Introduction
It is rare for the tabloids to produce anything of interest to legal theo-
rists. And yet it seems to be the fate of privacy law that many significant
developments have been motivated by the prurient practices of celebrity
gossip journalism. For example, in 2004 the House of Lords ruled that
Naomi Campbell could recover damages for breach of confidentiality on
account that her privacy had been violated by a British tabloid for detail-
ing her alleged drug treatment, accompanied by a photograph of her pur-
portedly leaving a Narcotics Anonymous meeting. The headline read:
Naomi: I am a drug addict.1 In the same year the New Zealand Court of
Appeal ruled that it was willing to recognize an independent tort of publi-
cation of private facts, even though it would not extend its protection to
the children of celebrity couple Mr. and Mrs. Hosking who were photo-
graphed while being pushed in a stroller by their mother.2
These cases recall Samuel Warren and Lewis Brandeiss concern re-
garding the practices of yellow journalism and their claim, in 1890, that
[i]nstantaneous photographs and newspaper enterprise have in-
vaded the sacred precincts of private and domestic life; and numer-
ous mechanical devices threaten to make good the prediction that
what is whispered in the closet shall be proclaimed from the house-
tops.3
The remedy, they argued, was for judges to recognize a common law right
to privacy, a right that American courts have subsequently protected
through the law of torts.4 This paper argues, however, that even if tabloid
journalism has inadvertently forged a consensus regarding the need to re-
spect privacy, it is still not clear whether, in what manner, and to what
extent private law should be enlisted in this endeavour. One of the diffi-
culties regarding private law protection for privacy is that this emerging
consensus regarding the need for legal protection is nonetheless fragile
and masks deep tensions. As I argue in this paper, while there is a clear
privacy impulse emerging across several common law jurisdictions,
1 Campbell v. MGN Ltd., [2004] UKHL 22, [2004] 2 A.C. 457 at para. 2, [2004], 2 W.L.R.
1232 [Campbell].
2 See Hosking v. Runting, [2004] NZCA 34, [2005] 1 N.Z.L.R. 1 [Hosking]. The children
were conceived through IVF treatment and the Hoskings had been open with the press
about Mrs. Hoskings pregnancy. After the twins were born, they declined further inter-
views or photographs.
3 Samuel Warren & Louis Brandeis, The Right to Privacy (1890) 4 Harv. L. Rev.193 at
195.
4 While often cited for the view that privacy is the right to be let alone, this in fact is not
a good interpretation of their argument. See Ruth Gavison, Privacy and the Limits of
Law (1980) 89 Yale L.J. 421 at 437, n. 48.
168 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
there is also a containment anxiety at play in the case law whereby
judges seek to contain the legal protection for privacy. This containment
anxiety takes different forms and is responsible for the tensions and dif-
ferences now evident in private law protection for privacy.
There are different ways to understand this containment anxiety. The
simplest explanation is that it is motivated by the definitional difficulties
surrounding privacy; as has been well catalogued in the literature, there
is little consensus regarding what privacy is and when it has been vio-
lated.5 However, while the definitional dilemma might be a familiar start-
ing point for privacy theorists, this paper adopts a different approach. I
argue that the containment anxiety at issue is better explained in terms
of a justificatory dilemma rather than a definitional one.
All legal rights raise the question of scope, and this question is inti-
mately linked to issues of value and justification: what values underlie
the right claimed, and how do these values connect to justifications for le-
gal liability? Traditional liberal strategies for justifying private law rights
focus on either autonomy or harm. Using Mill, I analyze what privacy un-
derstood as insulation from harm looks like and using Kant, I analyze
what privacy understood as the protection of autonomy looks like. My ar-
gument is that if we understand privacy as protecting either the value of
autonomy or freedom from harm, then we can justify only a fairly narrow
legal right to privacy. Although this can provide a reasonably precise ex-
planation for the specific ways in which courts have sought to limit the
scope of privacy claims, it severely undermines the growing recognition of
the importance of privacy. Therefore, instead of delineating a narrow pri-
vacy right, I argue that this focus on justification shows that privacy is in
fact not well described at all in terms of either harm or autonomy, and
that a legal right based on either of these justifications will be unduly nar-
row.
The alternative account that I put forward at the end of this paper is
that we should view privacy as protecting ones identity. Indeed, identity
is a value upon which a number of privacy theorists are converging, al-
though academic work on the relationship between privacy and identity is
more prominent outside legal scholarship.6 I invoke identity in order to
5 See e.g. ibid.; Daniel J. Solove, A Taxonomy of Privacy (2006) 154 U. Pa. L. Rev. 477;
Judith Jarvis Thomson, The Right to Privacy in Ferdinand David Schoeman, ed., Phi-
losophical Dimensions of Privacy: An Anthology (New York: Cambridge University
Press, 1984) 272.
6 See e.g. Erving Goffman, The Presentation of Self in Everyday Life (Garden City, N.J.:
Doubleday Anchor Books, 1959). Roger A. Clarke has also influenced a number of peo-
ple in the field of data protection with his notion of the digital persona: Roger A.
Clarke, Information Technology and Dataveillance in Charles Dunlop & Rob Kling,
PRIVACY AND PRIVATE LAW: THE DILEMMA OF JUSTIFICATION 169
argue that privacy protects ones capacity for identity formation. This can
provide both an account of the privacy interests at stake in cases like
Campbell and Hosking, as well as a justification for a more robust privacy
right than that offered by an understanding of privacy rooted in either
autonomy or harm. Attending to questions of justification in this way can
therefore also help to illuminate the nature of what I have been calling
the emerging privacy impulse in a manner that can help develop a more
coherent jurisprudence.
I. Unravelling the Tort Claim
Although their precise legal formulations vary, many of the major
common law jurisdictions are beginning to converge on recognizing a pri-
vate law right to privacy. For example, while courts in the United States
have recognized a tort of invasion of privacy since 1904,7 courts in New
Zealand now also recognize this tort, at least as it applies to the publica-
tion of private facts,8 and courts in the United Kingdom have held that
the law of confidentiality protects privacy in similar circumstances.9 Ca-
nadian courts have made numerous encouraging statements regarding
common law protection for privacy, although most of these have arisen in
very different contexts from the publication of private facts situation in
both Campbell and Hosking.10 Canadian commentators have also called
eds., Computerization and Controversy: Value Conflicts and Social Choices (San Diego:
Academic Press, 1991) 496.
7 See Pavesich v. New England Life Insurance, 69 L.R.A. 101, 50 S.E. 68 (Ga. 1905). Note
that this would be considered to fall under the false-light branch of the American tort,
and not publication of private facts.
8 See Hosking, supra note 2.
9 See Campbell, supra note 1. Before Campbell, the role of confidentiality in the protec-
tion of privacy was affirmed in Douglas v. Hello! Ltd. (2000), [2001] Q.B. 967, [2001] 2
W.L.R. 992 (C.A. U.K.).
10 See e.g. Motherwell v. Motherwell (1976), 1 A.R. 47, 73 D.L.R. (3d) 62 (C.A.) (arguably
extending the law of nuisance to capture privacy interests); Roth v. Roth (1991), 4 O.R.
(3d) 740, 9 C.C.L.T. (2d) 141 (Ct. J. (Gen. Div.)) (recognizing the possibility that invasion
of privacy might be actionable in the context of harassment in the enjoyment of prop-
erty). More recently, the Ontario Superior Court of Justice has indicated a willingness
to recognize a tort of invasion of privacy to deal with an employee credit check without
consent. See Somwar v. McDonalds Restaurants of Canada Ltd. (2006), 79 O.R. (3d)
172, 263 D.L.R. (4th) 752 (Sup. Ct.). A small claims court was also willing to recognize
the tort. See Caltagirone v. Scozzair-Clutier, [2007] O.J. No. 4003 (Ont. Sup. Ct. (Sm.
Cl. Div.)) (QL). The court has recognized the tort in the context of the publication of a
private telephone conversation. See Saccione v. Orr (1981), 34 O.R. (2d) 317, 19 C.C.L.T.
37 (Co. Ct.). Several Canadian provinces have created a statutory tort that would cover
the publication of private facts context. See Privacy Act, R.S.N. 1990, c. P-22 (New-
foundland); The Privacy Act, R.S.M. 1987, c. P125 (Manitoba); The Privacy Act, R.S.S.
1978, c. P-24 (Saskatchewan); Privacy Act, R.S.B.C. 1979, c. 336 (British Columbia).
170 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
for the general recognition of a tort of invasion of privacy.11 Finally, a
number of lower-court decisions in Australia have also endorsed some
version of the tort.12
For the purposes of comparison, this paper focuses on tort liability as-
sociated with the publication of private facts as it has developed in the
United States, the United Kingdom, and New Zealand. Because other ju-
risdictions do not have similar leading decisions regarding the publication
of private facts, I do not include a discussion of their developing privacy
jurisprudence.13 I argue that this strong judicial privacy impulsean in-
tuition that privacy is a fundamental value worthy of legal protectionis
being undercut by a judicial containment anxiety. This anxiety pertains to
the consequences of providing the legal protection that seems called for by
that privacy impulse and is leading to a number of important areas of dis-
agreement and confusion in the case law. The following two sections out-
line in detail some of the inconsistencies and disagreements between ju-
risdictions as to the ambit of privacy rights in order to identify the key
tensions and questions regarding private law protection for privacy. The
first section reveals these tensions in the context of the question of
whether to recognize a tort of invasion of privacy; the second section con-
siders the substance of the action. Subsequent sections of this paper argue
that the precise contours of this containment anxiety are actually quite
instructive in relation to our understanding of privacy and can be best
understood in terms of a justificatory dilemma in relation to a private law
right to privacy.
A. Recognition of the Tort
This section outlines the differences between the United States, the
United Kingdom, and New Zealand in relation to the issue of whether to
Quebec recognizes a privacy right in art. 36 C.C.Q., and in the Quebec Charter of Hu-
man Rights and Freedoms (R.S.Q. c. C-12, s. 5 [Quebec Charter]). For an interesting
Quebec Charter case dealing with the publication of private facts, see Aubry v. ditions
Vice-Versa, [1998] 1 S.C.R. 591, 157 D.L.R. (4th) 577 [Aubry]. The High Court of Austra-
lia has specifically left open the possibility of a tort of privacy. See Australian Broad-
casting Corp. v. Lenah Game Meats Pty Ltd., [2001] HCA 63, 208 C.L.R. 199, 76
A.L.J.R. 1 [Lenah].
11 See John D.R. Craig, Invasion of Privacy and Charter Values: The Common-Law Tort
Awakens (1997) 42 McGill L.J. 355.
12 See Doe v. Australian Broadcasting Corp., [2007] VCC 281; Grosse v. Purvis, [2003]
QDC 151, [2003] Aust Torts Reports 81-706. See also Lenah, supra note 10. Compare
Giller v. Procopets, [2008] VSCA 236 (dealing with the publication of sexually explicit
videotapes as a question of confidentiality rather than privacy).
13 The most similar Canadian case is Aubry, which was decided on the basis of the Quebec
Charter and not the common law (supra note 10).
PRIVACY AND PRIVATE LAW: THE DILEMMA OF JUSTIFICATION 171
recognize a tort of invasion of privacy. Courts in the United States have
long recognized a tort of invasion of privacy. In a well-known 1960 article,
William Prosser surveyed the jurisprudence that had emerged after War-
ren and Brandeiss influential article, and classified the cases into four
branches: publication of private facts, false-light advertising, misappro-
priation of name or likeness, and intrusions upon seclusion.14 Prosser ar-
gued that these four branches in fact protected very different interests
including mental, reputational, and proprietary interestsand should be
treated separately by the courts. His classification was subsequently
adopted by the American Restatement of Torts and now forms the basis of
American privacy jurisprudence.15
Prossers fracturing of the tort has also strongly influenced the devel-
opment of the law of privacy in other jurisdictions. Outside the United
States, most jurisdictions have been unwilling to recognize what Lord
Hoffman, in Wainwright, called a high-level principle of invasion of pri-
vacy justifying a general tort of invasion of privacy.16 Indeed, the difficul-
ties that U.S. courts have faced in delineating the content of the tort are a
central reason for the hesitation on the part of the House of Lords to fol-
low the American example. For example, in Wainwright, Lord Hoffmann
stated:
The need in the United States to break down the concept of in-
vasion of privacy into a number of loosely-linked torts must cast
doubt upon the value of any high-level generalization which can per-
form a useful function in enabling one to deduce the rule to be ap-
plied in a concrete case. … There are a number of common law and
statutory remedies of which it may be said that one at least of the
underlying values they project is a right of privacy. … But there are
gaps; cases in which the courts have considered that an invasion of
privacy deserves a remedy which the existing law does not offer.
Sometimes the perceived gap can be filled by judicious development
of an existing principle. The law of breach of confidence has in recent
years undergone such a process.17
In the United Kingdom, therefore, privacy is protected by private law only
insofar as courts can fashion discrete developments within existing legal
categories.
14 See William L. Prosser, Privacy (1960) 48 Cal. L. Rev. 383. See also Warren &
Brandeis, supra note 3.
15 See American Law Institute, Restatement (Second) of the Law of Torts 652D (1997)
[Restatement 2d 652D].
16 Wainwright v. Home Office, [2003] UKHL 53, [2004] 2 A.C. 406 at para. 18, [2003] 3
W.L.R. 1137 [Wainwright].
17 Ibid. [reference omitted].
172 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
This need to frame ones claim within an existing cause of action has
narrowed the scope of protection available to potential claimants. For ex-
ample, in Wainwright the House of Lords denied Mrs. Wainwright a rem-
edy for having been strip searched while visiting her son in prison, despite
the courts finding that the search was gratuitous and distressing. None-
theless, one year later the House of Lords was willing to grant Naomi
Campbell a remedy for the Daily Mirror article and photos. Because Ms.
Campbell had made public statements that she was not a drug addict, the
House of Lords unanimously held that the newspaper was fully entitled to
put the record straight by reporting that she was a drug addict and was
receiving treatment.18 However, the House of Lords split on its assess-
ment of the facts of the case. Three of the five Law Lords held that the
newspaper violated Ms. Campbells privacy when it further reported
the fact that the treatment which she was receiving was provided by
Narcotics Anonymous; … details of the treatmentfor how long, how
frequently and at what times of day she had been receiving it, the
nature of it and extent of her commitment to the process; and … a
visual portrayal by means of photographs of her when she was leav-
ing the place where treatment had been taking place.19
The reason for the difference in treatment between Mrs. Wainwright and
Ms. Campbell was that in Campbell the House of Lords could invoke the
breach of confidence action to protect her privacy, instead of some high-
level principle.20 On its face this result seems anomalous in permitting
serious violations of privacy while punishing much more minor ones, mak-
ing the broad sweep of the American tort appear preferable despite its
many difficulties.
The New Zealand Court of Appeal explicitly disagreed with the House
of Lordss adaptation of the law of breach of confidence in order to protect
privacy:
Privacy and confidence are different concepts. To press every case
calling for a remedy for unwarranted exposure of information about
the private lives of individuals into a cause of action having as its
foundation trust and confidence will be to confuse those concepts.21
They were particularly concerned about the implications of such an ex-
pansion on more traditional areas of the law of confidentiality; however,
the court also thought that confidentiality provided too limited a protec-
tion for privacy. For example, Peck v. United Kingdom highlighted for the
18 Campbell, supra note 1 at para. 24.
19 Ibid. at para. 88.
20 Wainwright, supra note 16 at para. 18.
21 Hosking, supra note 2 at para. 48.
PRIVACY AND PRIVATE LAW: THE DILEMMA OF JUSTIFICATION 173
court the limitations of the law of confidence.22 In that case, the European
Court of Human Rights held that the law of confidentiality could not plau-
sibly catch the broadcast of footage of an attempted suicide captured by a
closed-circuit television camera in a public place, even though this broad-
cast was a violation of privacy. Because of these concerns, the New Zea-
land Court of Appeal rejected the House of Lordss reliance upon confiden-
tiality and instead recognized a tort of invasion of privacyat least as it
applied to the publication of private facts. This rejection raises a certain
irony, given the subsequent U.K. decision in Murray v. Express Newspa-
pers, where the Court of Appeal of England and Wales rejected the out-
come in the New Zealand decision of Hosking and, purporting to follow
Campbell, affirmed that the child of a famous parent could have a privacy
right to restrain the publication of photos taken of him in a public place.23
Despite this difference in terminologyand the substantive concerns
underlying this differencethe New Zealand position follows that of the
United Kingdom in not recognizing a general tort of invasion of privacy as
is found in American jurisprudence. Perhaps this fact, and the overlap in
concerns detailed below, led the New Zealand court to indicate that it be-
lieved its approach to be very close to that of the House of Lords.24
Like the House of Lords decision in Campbell, Hosking was a split de-
cision (three-to-two) with two strong dissents that reveal a number of fur-
ther tensions surrounding the recognition of the tort of invasion of pri-
vacy. Justice Keith wrote in dissent that no cause of action for the publi-
cation of private facts should exist in the common law of New Zealand.
For him, the reasons for this included the perceived lack of need, given
the fact that there were already specific protections in placesuch as the
law of confidentialityas well as a concern for the effect of such a tort on
freedom of expression.25 Justice Anderson agreed, holding that this new
liability, created in a side wind, is amorphous, unnecessary, a dispropor-
tionate response to rare, almost hypothetical circumstances and falls
22 Ibid. at para. 51, citing Peck v. United Kingdom, no. 44647/98, [2003] I E.C.H.R. 123, 36
E.H.R.R. 41 [Peck].
23 Murray v. Express Newspapers plc, [2008] EWCA Civ 446, [2008] 3 W.L.R. 1360
[Murray]. The child in question was David Murray, the son of author J.K. Rowling. The
court emphasized that the fact that the case dealt with the rights of the child and not
the famous parent was crucial and that the law should protect children from intrusive
media attention. Even though others on the street could see the child, the publication of
the photo widened the audience considerably and could provide an incentive to further
intrusive attention in the future (ibid. at para. 50).
24 Hosking, supra note 2 at para. 7.
25 See ibid. at para. 177.
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manifestly short of justifying its limitation on the right to freedom of ex-
pression.26
Ironically, this dissenting inclination not to recognize any tort of inva-
sion of privacy out of concern for freedom of expression is more in line
with actual judicial practice in the United States where, as has been out-
lined, a much broader tort is recognized. A particularly striking example
of privacy interests being overridden by freedom of expression is Florida
Star v. B.J.F.27 In that case, the Supreme Court of the United States over-
turned a lower-court decision imposing damages on a newspaper for pub-
lishing the name of a rape victim. Despite the fact that such publication
was in violation of a Florida statute, as well as the newspapers policy, the
court ruled that damages would violate the First Amendment. As Justice
White held in dissent,
[a]t issue in this case is whether there is any information about peo-
ple, whichthough truemay not be published in the press. By
holding that only a state interest of the highest order permits the
State to penalize the publication of truthful information, and by
holding that protecting a rape victims right to privacy is not among
those state interests of the highest order, the Court accepts the ap-
pellants invitation … to obliterate one of the most noteworthy legal
inventions of the 20th century: the tort of the publication of private
facts. … Even if the Courts opinion does not say as much today, such
obliteration will follow inevitably from the Courts conclusion here. If
the First Amendment prohibits wholly private persons (such as
B.J.F.) from recovering for the publication of the fact that she was
raped, I doubt that there remain any private facts which persons
may assume will not be published in the newspapers or broadcast on
television.28
Justice Whites concern has been echoed by a number of commentators.29
Therefore, the privacy tort in the United States covers a broader set of po-
26 Ibid. at para. 271.
27 491 U.S. 524 at 536, 109 S. Ct. 2603 (1989) [Florida Star]. The decision was split 6-3.
The court held that because the police report had inadvertently and erroneously named
the victim, the newspaper reporter had not unlawfully obtained the information. It was
up to the government (i.e., the police) to handle the information properly and to poten-
tially compensate victims for their loss of privacy (ibid. at 538).
28 Ibid. at 550-51 [references omitted].
29 See e.g. Peter B. Edelman, Free Press v. Privacy: Haunted by the Ghost of Justice
Black (1990) 68 Tex. L. Rev. 1195; Jacqueline R. Rolfs, The Florida Star v. B.J.F.: The
Beginning of the End for the Tort of Public Disclosure (1990) Wis. L. Rev. 1107. For a
discussion about the relationship between the tort of invasion of privacy and freedom of
expression in the United States, see generally Diane L. Zimmerman, Requiem for a
Heavyweight: A Farewell to Warren and Brandeiss Privacy Tort (1983) 68 Cornell L.
Rev. 291; C. Edwin Baker, Autonomy and Informational Privacy, or Gossip: The Cen-
tral Meaning of the First Amendment (2004) 21 Soc. Phil. & Poly 215.
PRIVACY AND PRIVATE LAW: THE DILEMMA OF JUSTIFICATION 175
tential privacy invasions than publication of private facts, including in-
trusions upon seclusion, false-light advertising, and the appropriation of
name or likeness. However, when the focus is on publication of private
facts, American common law in fact provides protection to a far narrower
class of publications than other jurisdictions due to the pre-eminence
given to freedom of expression.
Judicial reluctance to recognize a tort of invasion of privacy therefore
remains strong and can be summarized through reference to a number of
interrelated concerns that show judicial anxiety regarding the ability to
contain legal liability arising out of privacy violations. There are concerns
that privacy is too vague a concept upon which to create a general tort,
and that freedom of expression is important and should not be easily lim-
ited by such vague concerns. Many of these anxieties also influence the
scope of the tort once it is recognized: if the common law develops to pro-
tect privacy, it should do so by expanding upon existing causes of action or
at least by proceeding incrementally, rather than by establishing a broad
and general principle and by recognizing a robust countervailing interest
in freedom of expression that limits liability. As the following section out-
lines, this containment anxiety is also present in disputes regarding the
substantive elements of the action.
B. Substance of the Action
Although the United States, the United Kingdom, and New Zealand
all recognize some form of common law protection for the publication of
private acts, there are important substantive differences between their
approaches. This section outlines these differences as well as how they
may be cast as variations of a judicial containment anxiety with respect to
privacy. The first variation of this anxietyfound in both approaches of
the United States and of New Zealandinvolves limiting the scope of pri-
vacy through reference to a threshold of offensiveness.30 The second
variationfound in the United Kingdom but with echoes of it in all juris-
dictionsis effectively to deny any difference between private and con-
fidential information.
As already mentioned, American courts recognize four different
branches to the tort of invasion of privacy: publication of private facts, in-
trusions upon seclusion, false-light advertising, and the appropriation of
name or likeness. In contrast, the New Zealand Court of Appeal has re-
stricted its recognition of the tort to the publication of private facts. While
American courts have signalled an unwillingness to let privacy concerns
outweigh freedom of expression, the New Zealand Court of Appeal has in-
30 Infra notes 34, 35.
176 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
dicated that both values are worthy of protection and that one should not
be subsumed by the other.31 Nonetheless, apart from these differences, the
New Zealand tort of publication of private facts is quite similar to the
publicity given to private life branch of the American tort of invasion of
privacy.
The central point of agreement is that the publication of private facts
is not enough to establish liability; this publicity must also be highly of-
fensive.32 According to Justices Gault and Blanchard, there are two re-
quirements for a successful claim of interference with privacy in New Zea-
land:
1. The existence of facts in respect of which there is a reasonable
expectation of privacy; and
2. Publicity given to those private facts that would be considered
highly offensive to an objective reasonable person.33
This is very similar to the American position, which provides that:
One who gives publicity to a matter concerning the private life of an-
other is subject to liability to the other for invasion of his privacy, if
the matter publicized is of a kind that
(a) would be highly offensive to a reasonable person, and
(b) is not of legitimate concern to the public.34
The New Zealand Court of Appeal did not make absence of legitimate con-
cern an element of the tort, but rather held that a legitimate public con-
cern in the information was a defence to the tort.
The court in Hosking spoke explicitly of its reasons for requiring offen-
siveness as a means to contain liability. Justices Gault and Blanchard ar-
gued,
In theory, a rights-based cause of action would be made out by
proof of breach of the right irrespective of the seriousness of the
breach. However, it is quite unrealistic to contemplate legal liability
for all publications of all private information. It would be absurd, for
example, to consider actionable merely informing a neighbour that
ones spouse has a cold. By living in communities individuals neces-
sarily give up seclusion and expectations of complete privacy. The
concern of the law, so far as we are presently concerned, is with
widespread publicity of very personal and private matters. Publica-
tion in the technical sense, for example as applies in defamation, is
not in issue.
31 See Florida Star, supra note 27; Hosking, supra note 2.
32 Ibid. at para. 117.
33 Ibid.
34 Restatement 2d 652D, supra note 15.
PRIVACY AND PRIVATE LAW: THE DILEMMA OF JUSTIFICATION 177
Similarly publicity, even extensive publicity, of matters which,
although private, are not really sensitive should not give rise to legal
liability. The concern is with publicity that is truly humiliating and
distressful or otherwise harmful to the individual concerned. The
right of action, therefore, should be only in respect of publicity de-
termined objectively, by reference to its extent and nature, to be of-
fensive by causing real hurt or harm. …
We consider that the test of highly offensive to the reasonable
person is appropriate. It relates, of course, to the publicity and is not
part of the test of whether the information is private.
We do not see personal injury or economic loss as necessary ele-
ments of the action. The harm to be protected against is in the na-
ture of humiliation and distress.35
In this way, the court endeavoured to ask first, whether the information
at issue was private, and second, whether it met a certain kind of thresh-
old of seriousness in order to engage legal protection. This second, thresh-
old question is separate from the issue of balancing privacy against other
values such as freedom of expression, since the court also recognized a de-
fence of legitimate public concern, which can take into account freedom of
expression.36 Rather, the threshold of seriousness is meant to identify the
harm involved, which is understood in terms of humiliation and dis-
tress.37
Apart from requiring a threshold of seriousness, both the American
and New Zealand versions of the tort require a prior determination that
the information published be private. And this leads to a second strategy
of containment, although it is usually not explicitly understood as such. In
determining whether the published facts are indeed private, courts often
revert to ideas of confidentiality. For example, in denying a reasonable
expectation of privacy in the photographs of the Hosking children, the
New Zealand Court of Appeal ruled,
The photographs … do not disclose anything more than could have
been observed by any member of the public in Newmarket on that
particular day. They do not show where the children live, or disclose
any information that might be useful to someone with ill intent. The
existence of the twins, their age and the fact that their parents are
separated are already matters of public record.38
35 Hosking, supra note 2 at paras. 125-28 [emphasis in original]. Tipping J. agreed that
the question of offensiveness should be part of the test for reasonable expectation of pri-
vacy, but held that it should be a substantial level of offence rather than a high level
of offence (ibid. at para. 256).
36 See ibid. at para. 129.
37 Ibid. at para. 128.
38 Ibid. at para. 164.
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American courts would have likely come to the same conclusion.39 How-
ever, this idea that there can be no privacy interest in information that
has already in some sense been revealed in public comes directly out of a
paradigm of confidentiality.40 As will become clearer in the discussion of
confidentiality in connection with the Campbell decision below, informa-
tion that is publicly available generally fails the test for confidentiality.
However, even if this is quite a familiar conclusion regarding confidential-
ity, privacy-focused analysis can lead to a different result. Indeed, many
commentators have indicated that there can be a privacy interest in pub-
lic information, and their view is also supported by some judicial opin-
ion.41 It is thus not clear why the court in Hosking felt the need to deny a
reasonable expectation of privacy in public, when it could have invoked its
test of offensiveness to achieve the same result.
The relationship between privacy and confidentiality is more explicitly
addressed in Campbell, although many issues remain unresolved. Despite
a three-to-two split, the House of Lords in Campbell understood itself to
agree that the recognition of breach of confidentiality is a cause of action
capable of protecting privacy, and to split instead on its application to the
facts of the case. However, there was also significant disagreement re-
garding whether the court was simply applying the traditional breach of
confidentiality action or creating a new, extended version of the action.
Implicit in this disagreement are differing views regarding the relation-
ships between confidential and private information. A brief overview of
the law of confidentiality is necessary to distinguish these concepts.
39 See e.g. Prosser, supra note 14 at 391-92 (there is no right of privacy in public places).
40 See e.g. Jonathan Morgan, Privacy, Confidence and Horizontal Effect: Hello Trouble
(2003) 62 Cambridge L.J. 444 (photographs of individuals in public places cannot be
protected by the law of confidentiality).
41 See e.g. Helen Nissenbaum Protecting Privacy in an Information Age: The Problem of
Privacy in Public (1998) 17 Law & Phil. 559; Lisa Austin, Privacy and the Question of
Technology (2003) 22 Law & Phil. 119; N.A. Moreham, Privacy in Public Places
(2006) 65 Cambridge L.J. 606. This has been recently recognized in the U.K. decision
Murray (supra note 23) and by the European Court of Human Rights in Von Hannover
v. Germany ((2004), 2004-VI E.C.H.R. (Ser. A) 41, 40 E.H.R.R. 1 [Von Hannover]). The
Supreme Court of the United States recognized a privacy interest in a compilation of
public records in Reporters Committee for Freedom of the Press v. United States De-
partment of Justice (489 U.S. 749, 109 S. Ct. 1468 (1989)). Interpreting the Quebec
Charter, the Supreme Court of Canada recognized a privacy right attaching to ones im-
age even where the photograph was taken in a public place in Aubry (supra note 10).
The Canadian Judicial Council recognizes that broad electronic access to public court
records raises a number of privacy concerns: Canadian Judicial Council, Model Policy
for Access to Court Records in Canada, online: Canadian Institute for the Administra-
tion of Justice
PRIVACY AND PRIVATE LAW: THE DILEMMA OF JUSTIFICATION 179
Breach of confidentiality was originally understood as an equitable
doctrine.42 Until Saltman Engineering Coy. Ld. v. Campbell Engineering
Coy., Ld.,43
the main cases on [breach of] confidentiality [were seen to be] sig-
nificant for their lack of any uniform jurisprudential basis. The con-
fidences were mostly commercial and arose generally in the context
of contracts, such as contracts of partnership, employment, agency
or sale.44
Saltman is significant in that it affirmed that there could be an obligation
of confidence without a contractual relationship. Saltman also defined
when the information at issue had the necessary quality of confidence
about it. Lord Greene M.R. stated, The information, to be confidential,
must, I apprehend, apart from contract, have the necessary quality of con-
fidence about it, namely, it must not be something which is public property
and public knowledge.45 Confidential information therefore refers to the
fact that the information is kept secret, rather than any quality intrinsic
to the information itself. Notably, public information is by definition non-
confidential.
The classic statement of breach of confidence, now understood to stand
independently of contract, is found in Coco v. A.N. Clark (Engineers) Ltd.,
where Justice Megarry, as he then was, identified three elements for a
successful breach of confidence claim:
First, the information … must have the necessary quality of confi-
dence about it. Secondly, that information must have been imparted
in circumstances importing an obligation of confidence. Thirdly,
there must be an unauthorized use or disclosure of that information
to the detriment of the party communicating it.46
The second element has generated significant interest, alongside inquiry
into the circumstances that import an obligation of confidence. More spe-
cifically, can there be an obligation where the parties are not in a relation-
ship of confidence?
42 See Prince Albert v. Strange, (1849) 1 Mac. & G. 25, 41 E.R. 1171 (Ch.D.) [Prince Albert
cited to Mac. & G.]. The plaintiff in that case won on both grounds of breach of trust and
infringement of property (ibid. at 42). Interestingly, in their highly influential article
regarding the creation of a common law right to privacy, Warren and Brandeis pointed
to Prince Albert as a common law copyright case that was in fact protecting a right to
privacy that now required an independent grounding (supra note 3 at 199-205).
43 (1948) 65 R.P.C. 203 (Ch.D.) [Saltman].
44 R.G. Toulson & C.M. Phipps, Confidentiality (London, U.K.: Sweet & Maxwell, 1996) at
9.
45 Saltman, supra note 43 at 215 [emphasis added].
46 [1969] R.P.C. 41 at 47-48 (Ch.D.) [references omitted].
180 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
It was the perceived need for a relationship of confidence that led
Warren and Brandeis to reject breach of confidentiality as a means of pro-
tecting privacy, and to call for the recognition of a more general tort. As
they argued, such a doctrine
may have satisfied the demands of society at a time when the abuse
to be guarded against could rarely have arisen without violating a
contract or a special confidence; but now that modern devices afford
abundant opportunities for the perpetration of such wrongs without
any participation by the injured party, the protection granted by the
law must be placed upon a broader foundation.47
When the only way to have a photograph taken was to pose in a studio,
the law of contract or confidentiality could control its dissemination. How-
ever, with modern photographic technology this is no longer the case: the
photographer can take a subjects picture without there being any rela-
tionship of confidentiality involved.
However, the law of confidentiality did evolve to catch cases where
there is no relationship of confidence between parties.48 The first devel-
opment along these lines was to find an obligation where a third party
discloses information he has received from someone who he knows is un-
der a duty of confidence.49 The second development can be traced to Lord
Goffs holding in Guardian that a duty of confidence can arise independ-
ently of a relationship of confidence where an obviously confidential
document is wafted by an electric fan out of a window into a crowded
street, or where an obviously confidential document, such as a private di-
ary, is dropped in a public place and is then picked up by a passer-by.50
The salient question is whether this evolution properly catches the kinds
of privacy cases that Warren and Brandeis were concerned about when
they rejected breach of confidentiality. And this depends upon whether
47 Warren & Brandeis, supra note 3 at 210-11.
48 For a good overview of some of the ambiguities in English law regarding the require-
ment of confidentiality in such privacy cases, both pre and postCampbell, see Ray-
mond Wacks, Why There Will Never Be an English Common Law Privacy Tort in An-
drew T. Kenyon & Megan Richardson, eds., New Dimensions in Privacy Law: Interna-
tional and Comparative Perspectives (Cambridge: Cambridge University Press, 2006)
154; Gavin Phillipson, The Right of Privacy in England and Strasbourg Compared in
Andrew T. Kenyon & Megan Richardson, eds., New Dimensions in Privacy Law: Inter-
national and Comparative Perspectives (Cambridge: Cambridge University Press, 2006)
184; Raymond Wacks, The Poverty of Privacy (1980) 96 Law Q. Rev. 73 at 81-82.
49 This general proposition was widely agreed upon by the various Law Lords. See Attor-
ney-General v. Guardian Newspapers Ltd. (No. 2) (1988), [1990] 1 A.C. 109, [1988] 3
W.L.R. 776 (H.L.) [Guardian cited to A.C.].
50 Ibid. at 281. See also Gavin Phillipson, Transforming Breach of Confidence?: Towards
a Common Law Right of Privacy under the Human Rights Act (2003) 66 Mod. L. Rev.
726.
PRIVACY AND PRIVATE LAW: THE DILEMMA OF JUSTIFICATION 181
disclosure of an obviously confidential document catches the same cases
as does the publication of private facts.
The argument that it does not is an argument that an action for
breach of confidentiality, even when not explicitly requiring the breach of
a confidential relationship, is still ultimately concerned with protecting
confidential relationships. The reasons for protecting confidences are nu-
merous. As several of the judgments in the House of Lords pointed out,
the details of Ms. Campbells treatment needed to be protected in order to
protect the therapeutic relationship. Lord Hope stated,
The therapy is at risk of being damaged if the duty of confidence
which the participants owe to each other is breached by making de-
tails of the therapy, such as where, when and how often it is being
undertaken, public.51
In other words, even if the press learned of Ms. Campbells therapy with-
out there being a violation of the confidential relationship between the
participants in that therapy, publication of this information can nonethe-
less damage that relationship.52
But there may be information that is private where its publication
does not threaten any kind of confidence or relationship of trust.53 If the
House of Lords is protecting private information rather than confiden-
tial information, then it is shifting the breach of confidence action away
from where Lord Goff placed it with his willingness to impose a duty of
confidence regarding obviously confidential documents. The clearest
statements of such a shift are found in the judgments of Lords Nicholls
and Hoffman. Lord Nicholls argued that
[t]he continuing use of the phrase duty of confidence and the de-
scription of the information as confidential is not altogether com-
fortable. Information about an individuals private life would not, in
ordinary usage, be called confidential. The more natural descrip-
tion today is that such information is private. The essence of the tort
is better encapsulated now as misuse of private information.54
Lord Hoffmann also felt that the law of confidentiality had shifted in a
fundamental manner. In addition to no longer requiring the violation of a
confidential relationship, there had been
51 Campbell, supra note 1 at para. 95.
52 Some commentators argue that a focus on confidentiality, because of its emphasis on re-
lationships, can address cases that the American tort of invasion of privacy cannot. See
Neil M. Richards & Daniel J. Solove, Privacys Other Path: Recovering the Law of Con-
fidentiality (2007) 96 Geo. L.J. 123.
53 See e.g. Peck, supra note 22.
54 Campbell, supra note 1 at para. 14.
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the acceptance, under the influence of human rights instruments
such as article 8 of the [European Convention for the Protection of
Human Rights and Fundamental Freedoms], of the privacy of per-
sonal information as something worthy of protection in its own
right.55
Further,
[w]hat human rights law has done is to identify private informa-
tion as something worth protecting as an aspect of human autonomy
and dignity. …
The result of these developments has been a shift in the centre of
gravity of the action for breach of confidence when it is used as a
remedy for the unjustified publication of personal information. It
recognises that the incremental changes to which I have referred do
not merely extend the duties arising traditionally from a relation-
ship of trust and confidence to a wider range of people. … Instead of
the cause of action being based upon the duty of good faith applica-
ble to confidential personal information and trade secrets alike, it fo-
cuses upon the protection of human autonomy and dignitythe
right to control the dissemination of information about ones private
life and the right to the esteem and respect of other people.56
The shift in breach of confidentiality, although stated differently in two
judgments, concerns a shift in the nature and status of the protected in-
formation. The traditional breach of confidence action concerns confiden-
tial information, which is information that is kept secret rather than pub-
lic, and is protected because of the importance of protecting confidences
and relationships of trust. For Lord Nicholls, the need to protect confi-
dences no longer adequately describes the information at issue. Lord
Hoffman goes further, holding that the protection of private information
is necessary for human autonomy and dignity.
As other Law Lords use confidentiality and privacy interchangeably,
they do not provide a clear view of the shift toward the protection of pri-
vate information. Still, others such as Lord Hope actively resist it:
The questions that I have just described seem to me to be essentially
questions of fact and degree and not to raise any new issues of prin-
ciple. …
The language has changed following the coming into operation of
the Human Rights Act 1998 … I doubt whether the result is that the
centre of gravity … has shifted.57
55 Ibid. at para. 46.
56 Ibid. at paras. 50-51 [references omitted].
57 Ibid. at paras. 85-86. Lord Hope indicated her agreement with this position (ibid. at
para. 134).
PRIVACY AND PRIVATE LAW: THE DILEMMA OF JUSTIFICATION 183
On this view, the boundaries of the protection of privacy are clearly
marked by the principles of confidentiality, no less when the language of
privacy is adopted.
Because the facts of Campbell fit within both the traditional breach of
confidence action and its purported extension into an action for misuse of
private information, the disputed relationship between privacy and confi-
dentiality was left unresolved. But it raises a number of important ques-
tions. For example, the breach of confidence model suggests that all that
is required is an unauthorized use or disclosure of the confidential or pri-
vate informationnot widespread publicity, as required by both the New
Zealand and American versions of the tort of invasion of privacy. Simi-
larly, the breach of confidence model suggests that this misuse of private
information results in detriment but the New Zealand and American
versions of the tort instead require that the publication be highly offen-
sive. Indeed, the idea that private information is protected only from pub-
licity that is highly offensive was rejected in Campbell. At most, the U.K.
position is that the test for publicity that is highly offensive is relevant
only to help identify information as private when it is not easily identified
as such.58 It is not an additional requirement that narrows tort protection
to private information, the publication of which is highly offensive.
One can see that the scope of the action is considerably narrowed by
maintaining an emphasis on the protection of confidential information. If
this does indeed shift to a broader category of information, then the scope
of the action will likewise be broadened. Liability would be imposed for
unauthorized disclosure of private information to an individuals detri-
mentsubject to other considerations such as freedom of expression
unless another variation of containment anxiety modified this extended
action even further.
Subsequent case law in the United Kingdom has done little to clarify
the relationship between confidentiality and privacy.59 McKennitt con-
cerned the publication of details of singer Loreena McKennitts life by a
former friend and work associate. Mosley concerned the publication of al-
legations that the claimant, FIA (Fdration Internationale dAutomobile)
President Max Mosley, had participated in a Nazi sex orgy. Although
these cases refer to Campbell and the newly extended form of the breach
of confidence action, both the High Court of England and Wales and the
House of Lords nonetheless viewed the matter before them as an old-
58 Ibid. at para. 94, Lord Hope.
59 See McKennitt v. Ash, [2006] EWCA Civ 1714, [2007] 3 W.L.R. 194 [2008] 1 Q.B. 73
[McKennitt]; Mosley v. News Group Newspapers Ltd., [2008] EWHC 1777, [2008] W.L.R.
259 (Q.B.D.) [Mosley].
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fashioned breach of confidence.60 At the same time, there are some indi-
cations that the emphasis of the extended action is indeed shifting toward
a more expansive notion of privacy. The most notable example in this re-
gard is Murray, where the Court of Appeal of England and Wales held
that the child of a famous parent had a reasonable expectation that he or
she will not be targeted in order to obtain photographs in a public place
for publication, where the photographer knew that it was likely that con-
sent would not be given.61 As this case dealt with whether the claim
should be struck because there was no reasonable expectation of privacy
at issue, it remains unclear how this decision will affect the jurisprudence
regarding the subsequent question of how privacy is to be balanced
against competing interests.62 Moreover, this case and others are increas-
ingly influenced by jurisprudence regarding article 8 of the European
Convention on Human Rights,63 which will potentially shift the focus fur-
ther away from traditional ideas of confidentiality and import a very dif-
ferent idea of privacy.64
In sum, what I have been calling the privacy impulse is responsible for
the recognition of some form of the tort of invasion of privacy in jurisdic-
tions such as the United Kingdom and New Zealand, at least insofar as it
applies to the context of the publication of private facts. In the United
Kingdom, it is also responsible, in the breach of confidentiality action, for
a shift away from a concern for confidential information and toward the
protection of private information, although this shift is far from settled
law. Nonetheless, this privacy impulse is often curtailed by what I have
called containment anxiety. This takes several forms in the case law. In
the United Kingdom, it pushes some judges to resist the shift from confi-
dential information to the potentially broader category of private informa-
tion, understood to protect interests other than confidences. Indeed, even
in jurisdictions that explicitly recognize privacy as the protected interest,
judges often implicitly appeal to confidentiality norms and thus narrow
the scope of protection for privacy. In the United States and New Zealand,
60 McKennitt, supra note 59 at para. 8, Lord Buxton; Mosley, supra note 59 at para. 6 [ref-
erence omitted].
61 Murray, supra note 23 at para. 57.
62 The court indicated that the child had an arguable case on the question of whether
the balance should be struck in his favour and that the case should proceed to trial on
both points (ibid. at para. 61).
63 Convention for the Protection of Human Rights and Fundamental Freedoms, 4 Novem-
ber 1950, 213 U.N.T.S. 221 at 223, Eur. T.S. 5 [ECHR].
64 One of the most influential cases to date is Von Hannover (supra note 41) where the
European Court of Human Rights held that Princess Caroline had a right to privacy in
private activities that are not themselves embarrassing and which may be under-
taken in public, such as shopping.
PRIVACY AND PRIVATE LAW: THE DILEMMA OF JUSTIFICATION 185
the containment anxiety also pushes the courts to require that the publi-
cation of private facts be highly offensive. In some jurisdictions, such as
the United States, it motivates courts to privilege other values, such as
freedom of expression, over privacy.
II. The Justificatory Dilemma
One response to the variations of containment anxiety outlined above
is to see them simply as part of the general drama of tort law: actions are
recognized and courts struggle to contain the implications of liability
within reasonable limits. Yet this is insufficient, as legal theory is also
concerned with this task, which can be rephrased in theoretical terms as
the question of justification. That is, the question of the nature and scope
of tort liability can be answered by reference to the underlying justifica-
tion for the imposition of legal liability in the private law context. Liberal
justifications for such liability have traditionally adopted one of two
strategies: a focus on harm, or a focus on autonomy. In other words, the
state is justified in assisting an individual who has been harmed or co-
erced by another. Therefore, if privacy is the kind of interest that merits
legal protectionrather than simply moral censurethen the situations
in which we hold there to be a violation must correspond to some cogniza-
ble harm or interference with an individuals autonomy. Moreover, this
harm or coercion can help to determine the merited scope of the protec-
tion.
I argue in this section that if we do this analysisif we seek to under-
stand the harm or coercion at stake in cases like Campbell and Hosking
a surprising conclusion emerges: it is in fact extremely difficult to cast the
wrong at issue in these cases in terms of harm or violation of autonomy.
Moreover, the precise ways in which it is difficult can account for many of
the specific features of the containment anxiety outlined previously, such
as the tendency to revert to confidentiality when determining the scope of
the privacy tort, the seeking of a threshold of offensiveness, and the
seeming engulfment of the privacy tort by freedom of expression in the
United States.
The justificatory dilemma thus does not shed light on general dilem-
mas in tort law, but rather illuminates the particular nature of privacy. It
does so in two ways. First, it is descriptive, helping to account for the state
of the jurisprudence as we find it. Second, it is normative, helping us to
understand the kind of value that privacy should be best understood to
protect. On this latter point, the justificatory dilemma indicates that pri-
vacy is not well understood in terms of either protecting individuals from
harm, or promoting autonomy.
It is important to distinguish the justificatory dilemma from what
might be termed a definitional dilemma. One could argue that the best
186 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
explanation for the containment anxiety found in the cases is not a justifi-
catory dilemma, but rather a definitional dilemma. The literature on pri-
vacy is replete with the observation that privacy is notoriously difficult to
define.65 Indeed, this has become an axiomatic starting point of many pri-
vacy discussions. However, the definitional dilemma suggests a different
structure of analysis from what I am proposing here. If the focus of analy-
sis is on the definition of privacy, one must first define privacy, then use
this definition to identify a violation of privacy in a particular context, and
finally ask whether such a violation should be protected by law.66 In prac-
tice, these latter two stages of analysis are often conflated and the deter-
mination of a violation of privacy is thought to justify a legal remedy. In
contrast, if the focus of analysis is on the justification for a legal right to
privacy, one must first ask what kind of behaviour is thought to constitute
a legal wrong. Then one must ask whether this behaviour is captured by
theories of legal wrongs such as harm or coercionthat is, does it crystal-
lize into either harm or coercion of a nature that may justify a legal right?
In this way, the definitional quagmire is bypassed by asking the question
of legal justification directly in relation to the behaviour at issue, and not
in relation to a particular definition of privacy.
Since the justificatory approach takes as its point of departure a par-
ticular context of behaviour rather than a particular definition of privacy,
the following sections do not interrogate a high-level principle of pri-
vacy.67 Nor do they focus primarily upon deciphering the meaning of pub-
lication of private facts because of the risk that a focus on what consti-
tutes private facts will return us to the definitional dilemma that I want
to sidestep. Instead, the following sections focus on the type of behaviour
at issue in cases like Campbell and Hosking. In terms that do not pre-
judge the privacy question, one could say that the publication of photos in
tabloids exposes the subject to increased curiosity and spreads informa-
tion about him or her similar to other practices of gossip. The question at
issue is therefore not What is privacy? but rather When does the gossip
and curiosity of others constitute a wrong of the type that justifies legal
sanctions?
There are two points to note in relation to this latter question. The
first is that the practices of gossip and curiosity at stake in the celebrity
publicity cases already discussed are not so different from the original
65 See supra note 5 and accompanying text.
66 Ruth Gavisons argument, for example, follows this structure (supra note 4). However,
Gavison does not get to the question of legal protection but points out that the question
of identifying a breach of privacy is separate from determining whether the law should
provide a remedy for this breach.
67 Wainwright, supra note 16 at para. 18, Lord Hoffmann.
PRIVACY AND PRIVATE LAW: THE DILEMMA OF JUSTIFICATION 187
concerns that motivated Warren and Brandeiss argument that the law
should recognize and protect a right to privacy. As previously discussed,
they too were concerned with the practice of gossip and its transformation
by advances in photography and newspaper publication.68 Indeed, gossip
and curiosity capture many of our contemporary concerns regarding the
availability of personal information on the internet. John Perry Barlow,
co-founder of the Electronic Frontier Foundation, argues that one implica-
tion of the internet is that everyone leads as public a life as I do at home
in a small town where
[a]nyone in Pinedale who is interested in me or my doings can get
most of the information he might seek in the Wrangler Caf. Be-
tween them, any five customers could probably produce all that is
known locally about me, including a [sic] quite a number of items
which were well known but not true.69
Therefore a focus on the practices of gossip and curiosity captures impor-
tant intuitions we have regarding privacy in some contexts, while remain-
ing focused on the behaviour at issue and not a particular definition of
privacy.
The second important point is that there is a persistent intuition, also
reflected in the case law, that the technological augmentation or trans-
formation of the social practices of gossip and curiosity have results that
merit legal attention.70 Therefore, to focus the justificatory question fur-
ther, we must inquire why and when gossip and curiosityand in particu-
lar their transformation through modern technology such as publication
in mass mediajustify the imposition of legal liability.
The following sections treat this question in detail and conclude as fol-
lows. First, a harm analysis justifies legal liability in the form of the
American tort of publicity given to private facts, which imposes a thresh-
old of harm (offensiveness) on the type of publicity that is actionable. Sec-
ond, a coercion analysis justifies legal liability in the form of a breach of
confidentiality action but resists its extension beyond traditional contours
of confidentiality. Third, both accounts show that limiting freedom of ex-
pression through privacy rights can itself lead to either harm or coercion.
I thus argue that the most important conclusion to draw from this discus-
sion of justifications is that the wrong arising out of practices of gossip
and curiosity is not appropriately described in terms of protection from
68 Warren & Brandeis, supra note 3.
69 John Perry Barlow, Private Life in Cyberspace Communications of the ACM 34:8 (Au-
gust 1991) 23.
70 See Robert Post, The Legal Regulation of Gossip: Backyard Chatter and the Mass Me-
dia in Robert F. Goodman & Aaron Ben-Zeev, eds., Good Gossip (Lawrence, Kan.:
University Press of Kansas, 1994) 6.
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harm or coercion. The alternative that I propose is that liability for such
practices is better understood in terms of protecting the capacity for iden-
tity formation, upon which I elaborate in the last section of the paper.
A. The Harm Argument
A focus on harm can help to articulate some scenarios in which gossip
can be deemed wrong. For example, gossip can clearly harm an individ-
uals reputation. However, harm to ones reputation cannot ground a right
to privacy. Such harm is already protected in private law through the law
of defamation, and the law of defamation protects only against the dis-
semination of information that is false (under American law) or that can-
not be proven true (in Commonwealth jurisdictions such as in the United
Kingdom and Canada). For the purposes of defamation law, true but pri-
vate information does not receive protection, for one is not entitled to the
protection of a good reputation gained through the suppression of truth.
A focus on reputational harm also does not capture what some see as
decisive with respect to a claim for privacy. For example, Warren and
Brandeis argued that the legal right to privacy involves the right to de-
termine when and how ones thoughts, sentiments, and emotions will be
communicated to others. Importantly, Warren and Brandeis thought that
protection for the communication of ones thoughts, sentiments, and emo-
tions had a spiritual rather than material basis, which led them to reject
any analogy between privacy and defamation.71 The common law of defa-
mation provided an inappropriate conceptual basis from which to derive a
principle of privacy, they argued, because
[i]t deals only with damage to reputation, with the injury done to the
individual in his external relations to the community, by lowering
him in the estimation of his fellows. The matter published of him,
however widely circulated, and however unsuited to publicity, must,
in order to be actionable, have a direct tendency to injure him in his
intercourse with others … the effect of the publication upon his esti-
mate of himself and upon his own feelings not forming an essential
element in the cause of action.72
In calling for the protection of ones thoughts, sentiments, and emotions
from unauthorized publication, therefore, Warren and Brandeis sought to
protect an individuals sense of self and not his relationship with others in
the community as protected by his reputation.
Apart from harm to reputation, there is another way to think about
the harm involved in gossip and curiosity. There is some information
71 Warren & Brandeis, supra note 3 at 197.
72 Ibid.
PRIVACY AND PRIVATE LAW: THE DILEMMA OF JUSTIFICATION 189
about ourselves that, if known by others, would leave us vulnerable to
harassment, discrimination, or other types of abuse. One could identify
the types of information that generate such vulnerabilities and protect
them from collection and dissemination through a right to privacy. This
information would not necessarily be sensitive or intimate in a traditional
sense, but rather would simply have to be linked to the problematic prac-
tices listed above. However, it is important to understand that in such
cases privacy functions more like an anticipatory remedy than a descrip-
tion of the wrong.73 By granting a privacy right over the information, we
protect an individual against wrongs that are not themselves best de-
scribed as invasions of privacy. For example, if an individuals HIV status
is considered private in order to provide some protection against discrimi-
nation, then the wrong at issue is the consequent discrimination and not
the invasion of privacy. Nonetheless, by protecting against disclosure of
the information, the discrimination can be prevented, providing a kind of
remedy in anticipation of the harm.
Although this account of privacy as an anticipatory remedy can cap-
ture some important elements of harm that might arise through gossip
and curiosity, it still does not capture the intuition that seems to be at
play in many discussions of privacy where privacy, in insulating us from
gossip and curiosity, also insulates us from forms of social pressure that
do not crystallize into other, independent harms. For example, Ferdinand
Schoeman argues that privacy norms define the presumptive boundaries
within which it is permissible to apply direct social pressure of account-
ability and of threatened social disgrace.74 The question then is how to
define the circumstances under which such social pressure might consti-
tute a harm sufficient to justify a legal right to privacy.
One reason for concern about such pressure is its inhibiting effect. For
example, Gavison has argued that privacy promotes liberty by permitting
individuals to do what they would not do without it for fear of an un-
pleasant or hostile reaction from others.75 These unpleasant reactions
need not themselves constitute independent wrongs such as harassment
and discrimination; they may simply impede individual experimentation
out of the fear of social sanction for unpopular ideas and actions. Instead,
privacy in this sense protects our ability to act and think in unpopular
73 Austin, supra note 41.
74 Ferdinand Schoeman, Gossip and Privacy in Goodman & Ben-Zeev, supra note 70, 72
at 81-82 [Schoeman, Gossip].
75 Supra note 4 at 451.
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ways. Privacy protects individuality understood in terms of our ability to
be eccentric.76
Here, John Stuart Mills classic articulation of the harm principle
within liberal theory can help outline why it is in fact difficult to ground a
legal right to privacy on this approach, even if from a sociological perspec-
tive it seems to capture something important about the relationship be-
tween gossip and privacy.77 Mill was acutely sensitive to the conditions of
modern life and the rise of the social sphere. He focused on the social
sphere as distinct from either the public understood as the state or the
social understood as the interactions between discrete individuals. Mill
argued that society understood collectively can practice a social tyranny
more formidable than many kinds of political oppression and that there
should be
a limit to the legitimate interference of collective opinion with indi-
vidual independence; and to find that limit, and maintain it against
encroachment, is as indispensable to a good condition of human af-
fairs as protection against political despotism.78
Mills general strategy with respect to the tyranny of the social sphere is
to draw a line between that which concerns only the individualmatters
for which the individual is not accountable to societyand that which
concerns ones relations with others. An individual is accountable to soci-
ety for conduct that concerns others, and in particular, conduct that
harms others. Therefore society is not justified in judging another for con-
duct that concerns only the individual.79 Based upon the foregoing, we
could argue that conduct that concerns only the individual should be pro-
tected by a right to privacy and thus shielded from the gossip and curios-
ity of others.
76 See also Edward J. Bloustein, Privacy as an Aspect of Human Dignity: An Answer to
Dean Prosser (1964) 39 N.Y.U. L. Rev. 962. The man who is compelled to live every
minute of his life among others and whose every need, thought, desire, fancy or gratifi-
cation is subject to public scrutiny, has been deprived of his individuality and human
dignity. Such an individual merges with the mass (ibid. at 1003).
77 For a contrasting reading of both Mill and Kant in relation to the privacy tort, see
Megan Richardson, Whither Breach of Confidence: A Right of Privacy for Australia?
(2002) 26 Melbourne U. L. Rev. 381.
78 John Stuart Mill, On Liberty, ed. by Elizabeth Rapaport (Indianapolis: Hackett, 1978)
at 4-5.
79 Mills line between what concerns the individual and what concerns others governs
ethical questions as well as legal ones. However, we could argue that if law is to be used
to protect the individual against unjustified interferences with individual independence
at the hands of society, then law may only be used in respect of conduct that concerns
only the individual.
PRIVACY AND PRIVATE LAW: THE DILEMMA OF JUSTIFICATION 191
However, Mills own analysis would not support such a conclusion.80
For example, Mill suggests that individuals do not require insulation from
the effects of being spoken about. In his discussion of the freedom of reli-
gious belief and opinion, Mill agrees that individuals should not be de-
prived of a livelihood because of their beliefs and the social stigma that
ensues from their profession of opinions not shared by the majority.81
Nonetheless, he draws a line between social coercion aimed at depriving
an individual of his livelihood, and social censure that simply leads to an
individual being ill-thought of, a result which ought not to require a very
heroic mold to enable them to bear.82 Put another way, being ill-thought
of is not an unjustified interference with individual autonomy. This sup-
ports privacy understood in terms of an anticipatory remedy that can help
protect individuals from harms like discrimination, but it does not sup-
port privacy understood in terms of insulation from social pressure that
does not rise to this level of harm.
Indeed, Mills analysis allows for a wide scope of social censure. He ar-
gues that even with respect to that which concerns only the individual
(which is his boundary demarcating individual liberty from social inter-
ference), society can express its disapprobation through [a]dvice, instruc-
tion, persuasion, and avoidance by other people, if thought necessary by
them for their own good.83 He elaborates:
In these various modes a person may suffer very severe penalties at
the hands of others for faults which directly concern only himself;
but he suffers these penalties only in so far as they are natural and,
as it were, the spontaneous consequences of the faults themselves,
not because they are purposely inflicted on him for the sake of pun-
ishment.84
Therefore others have a right to express their own individuality, as well
as their own beliefs, which will inevitably involve talking about others in
a negative manner. Given this, individuals may talk about others so long
as this gossip does not take the form of intentional punishment or go so
far as to deprive an individual of his or her livelihood. Even if the gossip is
about individual concerns and not those of society, an individual has no
right to be insulated from it. Such gossip is understood to be the sponta-
neous consequences of the faults themselves, or part of the right of other
individuals to express their opinions. Some of these concerns might be ac-
80 See also Ferdinand David Schoeman, Privacy and Social Freedom (New York: Cam-
bridge University Press, 1992) at 24ff.
81 Mill, supra note 78 at 30-31.
82 Ibid. at 31.
83 Ibid. at 93.
84 Ibid. at 76.
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commodated through the requirements, such as in American and New
Zealand tort law, that publication be extensive and offensive, making the
expression about another more like the parading or punishing that
Mill states is not acceptable.
However, there is still another major source of difficulty for Mill in ar-
ticulating a concern for privacy: freedom of expression. A legal right to
privacy looks like a legal restraint on speech and for Mill, the chief protec-
tion of individual liberty and diversity in the face of social tyranny is not
privacy but freedom of speech. To recognize a right not to be talked about
would be to stifle the speech of others. In fact, Mill seems to recognize a
tension between the intersubjective elements of speech and his division
between conduct that concerns an individual and conduct that concerns
others:
The liberty of expressing and publishing opinions may seem to fall
under a different principle, since it belongs to that part of the con-
duct of an individual which concerns other people, but, being almost
of as much importance as the liberty of thought itself and resting in
great part on the same reasons, is practically inseparable from it.85
Mill can then be interpreted as coming down in favour of treating speech
like thought, which concerns only an individual, rather than as an action
that also concerns others. In doing so, speech takes primacy over any kind
of concern that might ground a right to privacy.86 This is reflected in the
American experience with the tort of invasion of privacy. As discussed
earlier, cases like Florida Star call into question whether a privacy inter-
est can ever withstand a claim to freedom of expression, and in particular,
freedom of the press.87 Although courts in both the United Kingdom and
New Zealand have disagreed with this primacy of freedom of expression,
we can see that the justification for this objection faces some obstacles.
For all of these reasons, grounding a legal right to privacy in an analy-
sis of the harm of gossip and curiosity faces some significant hurdles in
moving beyond an understanding of privacy as an anticipatory remedy for
other harms. Claims to privacy look like claims to insulation from the so-
cial pressure resulting from others inquisitiveness into our lives and their
gossip about usa social pressure that promotes a kind of social confor-
mity. It is difficult to justify legal coercion to vindicate this interest unless
it causes some kind of injury. This explains the popularity of the test that
85 Ibid. at 11-12.
86 This seems to be where American tort jurisprudence is heading. See David A. Ander-
son, The Failure of American Privacy Law in Basil S. Markesinis, ed., Protecting Pri-
vacy: The Clifford Chance Lectures, vol. 4 (New York: Oxford University Press, 1999)
139.
87 See supra note 27.
PRIVACY AND PRIVATE LAW: THE DILEMMA OF JUSTIFICATION 193
the publicity of private facts be highly offensive, since this requirement
singles out cases where there is significant humiliation and distress.88
Importantly, whatever harms arise from this pressure need to be viewed
in light of the speech interest of others. It is difficult to articulate why dif-
fuse social pressure that does not rise to the level of more defined and
tangible harms should take precedence over a right to speech, especially
when a right to speech can itself promote individual diversity. Through a
justificatory lens, a Millian, harm-based argument for a private law right
to privacy is thus left looking like the American version of the tort of pub-
licity given to private life.
B. The Coercion Argument
Apart from a focus on harms, the second major liberal strategy for
grounding legal rights is a focus on autonomy or freedom from the coer-
cion of others where that coercion is understood in relation to individual
freedom rather than individual harm. Of course, there are diverse ac-
counts of autonomy and of its relevance to questions of legal rights. One
dominant account of autonomy is that of Kant and this section outlines
the significant hurdles it also faces in articulating why gossip and curios-
ity could amount to a legal, rather than an ethical wrong.
Kants division between external and internal freedom illuminates the
hurdles faced by this account of autonomy. The doctrine of right, concern-
ing what Kant refers to as external lawgiving, explicates the conditions of
external freedom. Kant describes this as a matter of the reciprocal rela-
tion of choice in which the wishes, needs, and ends of the other are irrele-
vant. He writes, Right is … the sum of the conditions under which the
choice of one can be united with the choice of another in accordance with a
universal law of freedom.89 In contrast, Kants doctrine of virtue concerns
duties of inner freedom.90 Inner freedom pertains to the motivation for ac-
tion, which must be self-chosen and self-legislated rather than imposed.
Consequently, the duties of virtue are duties for which there is no exter-
nal lawgiving.91 Therefore, for Kant a legal right is one that protects an
individuals external freedomhis or her agencyfrom violation by oth-
ers.
88 Hosking, supra note 2 at para. 128 (Gault and Blanchard JJ. indicate that it is hu-
miliation and distress that is the harm involved in invasion of privacy and not personal
injury or economic loss).
89 Immanuel Kant, The Metaphysics of Morals, trans. by Mary Gregor, ed. (New York:
Cambridge University Press, 1996) at 24.
90 See ibid. at 164-65.
91 Ibid. at 168. See also ibid. at 31.
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The boundaries of what is considered an impermissible violation of ex-
ternal freedom are set by the idea of the equal agency of all. A Kantian
account of a legal right to privacy would therefore have to show that the
gossip and curiosity of others can in some instances violate external free-
dom. In this regard it is important to note that the violation of external
freedom need not result in an injury to an individual. For example, if an-
other takes what is mine and uses it for his or her own purposes, then I
am wronged. This is the classic articulation of a trespass to land: you can-
not take and use my property without my consent even if such use causes
me no injury.92 A Kantian account of privacy therefore has the potential to
reorient the debate of privacy away from a focus on the effects and harms
of gossip and curiosity. Indeed, it could ground a claim for a privacy inva-
sion where someone was surreptitiously monitored and never found out
about it.
The key to a Kantian justification of privacy is therefore to ground a
sense in which information about me is mine, such that in collecting it
and using it for your own purposes you wrong me. However, as outlined
below, such an approach faces a number of significant hurdles in justify-
ing the mineness of such information. These hurdles can help to explain
why courts face a constant temptation to move back toward a confidential-
ity paradigm, why concerns regarding harm continue to intrude upon the
analysis, and why freedom of expression is such a potent countervailing
interest.
For Kant, my reputation is mine. As he argues, a good reputation is
an innate external belonging, though an ideal one only, which clings to
the subject as a person.93 Gossip that affects anothers reputation would
therefore violate that individuals external freedom. However, as noted in
the previous discussion regarding harm, this would ground a right against
the spreading of only false information, not true information, and so
would not protect an individuals desire to have some true facts kept from
further circulation. In other words, it grounds the legal doctrine of defa-
mation but not privacy.
What, then, about the many things that I endeavour to keep private?
Here Kants distinction between physical possession and rightful posses-
sion, as outlined in his discussion of property, is helpful. My innate right
to my body means that I have a right to an apple while I am holding it; to
92 The common law of trespass to land reflects this by allowing an action in trespass with-
out proof of damages. However, the common law of trespass to chattels has traditionally
required proof of damages. See Intel Corp. v Hamidi, 30 Cal. 4th 1342, 71 P.3d 296
(2003) (Super. Ct.).
93 Kant, supra note 89 at 76 [emphasis in original].
PRIVACY AND PRIVATE LAW: THE DILEMMA OF JUSTIFICATION 195
interfere with this possession is to interfere with my right to occupy a par-
ticular space. However, if I put the apple down then you wrong me only if
I can additionally claim that the apple is my propertythat it is some-
thing over which I have rightful, and not merely actual, possession.94
Similarly, if I endeavour to keep my thoughts, emotions, and sensations
private, then your interference with the steps I take to do so is an inter-
ference with my innate right to personality. However, once I choose to
communicate them then there must be a different basis for my entitle-
ment to my thoughts, emotions, and sensations. If a right to privacy is to
be more expansive than something like secrecywhich seems to be at
stake in the move from confidentiality to privacythen what is needed is
an understanding of privacy analogous to the rightful possession of the
apple.
One way to create such an account is to focus on the relationship be-
tween the individual who communicates her thoughts and the individual
who then makes some further use of this communication. Through invok-
ing the norms of contract or confidentiality, a Kantian account could allow
for some of these uses to be wrongful. For example, an individual who re-
ceives letters from you on the understanding that these are confidential
wrongs you in publishing them. But these doctrines would not catch the
case of a stranger seeking to publish my private letters, unless this piggy-
backs upon the initial relationship, such as when a stranger understands
that the information at issue has been obtained through a breach of confi-
dence. As discussed, this still does not catch private information per se.
Since technology permits access to an individuals thoughts, emotions,
and sensations without this access violating any special relationship,
Warren and Brandeis argued that what is required is a right against the
world such as that afforded by property, not by confidentiality or contract.
By this they did not mean the traditional doctrine of property such as
ones property in the home. Historically, the protection afforded by tres-
pass went a long way to protect the privacy of the home. But such protec-
tion is vulnerable to the critique that technology makes it possible to in-
trude on others without actually violating any property right. Instead,
Warren and Brandeis grounded their argument in common law cases re-
garding copyright protection for unpublished works, which granted indi-
viduals a right to prevent the publication of original expression. They ar-
gued that such cases were better understood as applications of a more
general right to privacy than as intellectual property cases and should
therefore be expanded to protect ones thoughts, emotions, and sensations
94 For an overview of Kants position regarding rightful possession, see Ernest J. Weinrib,
Poverty and Property in Kants System of Rights (2003) 78 Notre Dame L. Rev. 795 at
805ff.
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regardless of form: whether expressed in writing, or in conduct, in con-
versation, in attitudes, or in facial expression.95
Would Kant recognize such protection for private letters and would he
allow for the expansion of such protection in the manner sought by War-
ren and Brandeis? Kant clearly recognizes a right against the copying of
books. A book, according to Kant, represents a discourse that someone
delivers to the public by visible linguistic signs.96 No one else may attach
his name to anothers work, for this would be to pass oneself off as the au-
thor. Similarly, if an author speaks in his own name through a book, a
publisher speaks in the name of the author and may rightfully do so only
with the permission of the author.97 However, the wrong involved in pub-
lishing without the authors permission is the wrong of stealing the prof-
its from the publisher who was appointed by the author.98 It is not clear
how this wrong would extend to someone who is publishing previously
unpublished material without the authors permission. It is also not clear
how it would extend to someone who wanted to comment on the private
communication of another and so was more in the position of a journalist
than a publisher who could be said to be speaking in the name of the au-
thor.99
Furthermore, it is not clear that Kant would extend his analysis of
copyright in the manner argued for by Warren and Brandeis, to include
protection from the unauthorized dissemination of ones thoughts, emo-
tions, and sensations in whatever form. Kant distinguishes writing from
other kinds of works such as an etching which represents a certain per-
son in a portrait, or a work in plaster that is a bust for these, unlike writ-
ing, are immediate signs of a concept.100 To interfere with anothers use of
such signs would presumably interfere with an individuals freedom to
communicate his own thoughts. Similarly, to grant an individual the con-
trol over disseminating details of ones personal appearance, acts, and re-
95 Warren & Brandeis, supra note 3 at 206.
96 Kant, supra note 89 at 71.
97 Ibid.
98 Ibid.
99 Perhaps a Kantian account could accommodate some alleged misuses of images similar
to what are now known as the false-light publicity and misappropriation of personality
branches of the American tort of invasion of privacy (see Prosser, supra note 14). The
types of cases caught by these doctrines are at least analogous to the direct passing-off
example Kant discusses in his treatment of copyright; all cover situations of misattribu-
tion. If my image is used in a product endorsement, then, arguably, I am being made to
seem as though I am endorsing the product. Even if such false attribution does not af-
fect my reputation and so is not defamatory, it is forcing me to speak when I have cho-
sen to remain silent.
100 Kant, supra note 89 at 70-71 [emphasis in original].
PRIVACY AND PRIVATE LAW: THE DILEMMA OF JUSTIFICATION 197
lationships would be to interfere with the ability to express ones opinion
about another.
In fact, there is a strong basis upon which to argue that for Kant,
speaking about others is generally something that one does as a matter of
right rather than something that violates rights. This is because the prin-
ciple of innate freedom implicitly involves the authorization
to do to others anything that does not in itself diminish what is
theirs, so long as they do not want to accept itsuch things as
merely communicating his thoughts to them, telling or promising
them something, whether what he says is true and sincere or untrue
and insincere (veriloquium aut falsiloquium); for it is entirely up to
them whether they want to believe him or not.101
In a footnote to this statement, Kant elaborates that intentionally telling
an untruth is considered a lie in the sense of bearing upon rights when it
deprives another of what is his, such as the false allegation that a con-
tract has been concluded with someone.102 Therefore for Kant, communi-
cation to others is presumptively authorized even if it involves insincere
falsehoods so long as such communication does not affect anothers exter-
nal freedom. As has been argued, it is difficult to determine how such
communication could affect anothers external freedom apart from the
limited protection afforded by defamation, contract, confidentiality, and
copyright.
Indeed, for Kant, a general concern for how others talk about an indi-
vidual falls more directly within the realm of ethics than law. Consider
Kants discussion of what he calls defamation, which is closer to the sense
of gossip that we are concerned with. Kant argues:
The intentional spreading (propalatio) of something that detracts
from anothers honoreven if it is not a matter of public justice, and
even if what is said is truediminishes respect for humanity as
such, so as finally to cast a shadow of worthlessness over our race it-
self, making misanthropy (shying away from human beings) or con-
tempt the prevalent cast of mind, or to dull ones moral feeling by
repeatedly exposing one to the sight of such things and accustoming
one to it. It is, therefore, a duty of virtue not to take malicious pleas-
ure in exposing the faults of others so that one will be thought as
good as, or at least not worse than, others, but rather to throw the
veil of benevolence over their faults, not merely by softening our
judgments but also by keeping these judgments to ourselves; for ex-
amples of respect that we give others can arouse their striving to de-
serve it.For this reason, a mania for spying on the morals of others
(allotrio-episcopia) is by itself already an offensive inquisitiveness on
101 Ibid. at 30-31.
102 Ibid. at 31, n. *.
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the part of anthropology, which everyone can resist with right as a
violation of the respect due him.103
Kant therefore classifies defamation, understood here as malicious gossip,
as a vice that violates the duty of respect that we owe to other human be-
ings. However, such a violation concerns the violators inner motivation:
his failure is a failure to treat another as an end in itself. This is why the
violation is a matter of the doctrine of virtue and not the doctrine of right.
In other words, one can lack respect for another without violating his or
her external freedom.104
Kant does argue, however, that one of the duties of right is the duty of
rightful honour, which he expresses as, Do not make yourself a mere
means for others but be at the same time an end for them.105 One could
argue that this duty would allow an individual, as a matter of right, to re-
sist being treated as a means even if this treatment falls short of consti-
tuting a violation of external freedom. That is, one might have a privilege
to resist treatment that involves a lack of respect even if one does not
have a right to bring a claim against the disrespectful perpetrator. This
privilege appears to be the basis for Kants statement that we can resist
the offensive inquisitiveness of others with right: I can resist the prying
of others and have no obligation to co-operate in their inquisitiveness. But
if someone finds out something about me through some other means and
spreads this gossip, I have no legal claim against them.
Does something particular to mass media make a difference such that
we could make sense of the requirement of publicity? It may be that the
significance of mass media, and other contemporary forms of information
and communications technology, is that they make the prying of others
more effective and individual efforts at resistance less effective. For ex-
ample, suppose that I enter a restaurant and see my neighbour there with
a man who is not her husband. Apart from taking steps to avoid detection,
my neighbour has no legal claim to prevent me from telling others about
it the next day. Suppose that instead I publish this information on a com-
munity bulletin board on the internet. This is even a greater interference
with my neighbours attempts to avoid detection, as it dramatically ex-
pands the number of people who can now observe her. Nonetheless,
unless these practices somehow affect the nature of the relationship be-
tween me and my neighbour, then it is difficult to see how an individuals
103 Ibid. at 212 [emphasis added, references omitted].
104 Kant would probably also accept that the effect that such gossip has on an individuals
self-estimation is important as a matter of moral anthropology.
105 Ibid. at 29.
PRIVACY AND PRIVATE LAW: THE DILEMMA OF JUSTIFICATION 199
external freedom is violated. She has a privilege to resist; I do not wrong
her by prying, even if in doing so I act unethically.
A Kantian approach to privacy therefore faces a number of significant
hurdles in articulating an account of privacy. Moreover, many of these dif-
ficulties are similar to those that arose in the previous discussion of harm.
First, it is difficult to isolate a general concern for the wrong of gossip and
curiosity apart from more specific wrongs such as defamation or breach of
confidentiality. Second, any attempt to do so quickly encounters conflict
with freedom of speech, and a strong entitlement to freedom of speech is
easier to ground than a strong entitlement to privacy. The result is that
any kind of strong censure against the practices of gossip and curiosity,
even when enhanced by mass media, must be a matter of moral but not
legal concern. At most, a Kantian approach would endorse grounding pri-
vacy claims in breach of confidentiality. This review of a Kantian ap-
proach to privacy therefore gives an account of why one recurring version
of the judicial containment anxiety regarding privacy is either to revert to
a confidentiality paradigm, or to resist a shift out of it in the first place.
III. Alternatives: Identity versus Authenticity
The justificatory dilemma, as outlined in the previous section, leaves
several options open. The first option is to follow Mill and create a justifi-
cation for the American version of the tort of publicity given to private life,
with its requirement of harm and its threatened engulfment by freedom of
expression. The second is to follow Kant and provide protection only for
breach of confidentiality, with its focus on the protection of confidential re-
lationships rather than a particular category of information. Each of the
first two options has costs, because each considerably narrows the range
of privacy claims that the law is able to protect. The third option is to re-
ject both horns of the dilemma. Rather than using the justificatory di-
lemma as a means to narrow privacy protection, we can use it to shed
light on the nature of what I have been calling the emerging privacy im-
pulse.
The most important thing that the justificatory dilemma tells us is
that the value protected by a robust private law right to privacy is neither
autonomy nor freedom from certain kinds of harms. If we can understand
the nature of the wrong involved in the practices of gossip and curiosity
and their technological augmentation or transformationin different
terms, then perhaps we can answer the justificatory dilemma without
narrowing the scope of legal protection of privacy.
One way to re-envision the question of what kind of value the right to
privacy protects is to argue that privacy is an important condition for
autonomy, but is nonetheless conceptually distinct from the individual lib-
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erties that are seen to secure freedom in a liberal democracy. Thus, for
example, Beate Rssler argues:
If we consider the telos of freedom to be autonomy and thus the pos-
sibility of asking oneself what sort of person one wants to be and
how one wants to live, and if civil liberties guarantee just this
(within the well-known limits), it is clear thatwhen it comes to the
question of how one would like to liveviolations of privacy restrict
or tie a person down in a way that contradicts the spirit of civil liber-
ties demanded and secured, but that for a variety of reasons is not or
cannot be prevented by the civil liberties themselves.106
On such a view, privacy protects individuals in their ability to reflect on
the kind of person they would like to be and on how they would like to
live.107 In this sense, privacy protects aspects of ones self-relationship:
ones ability to assess and appraise personal choices and to live an au-
thentic life. Rsslers approach is promising, as it provides us with a way
of understanding the significance of being insulated from the gossip and
curiosity of othersand its attendant social pressurein a manner that
relates directly to the value of autonomy, without the need to establish
that violations of privacy are themselves direct violations of autonomy.
Although generally helpful at outlining one of the values protected by
privacy, this approach nonetheless faces its own difficulties in justifying a
private law right to privacy, particularly of the kind at issue in cases of
publication of private facts.108 For example, Rssler does not deal with this
particular legal question but does deal with the analogous issue of surrep-
titious surveillance, which she views as a paradigmatic violation of infor-
mational privacy.109 One could argue that the publication of private facts
is akin to placing someone under surreptitious surveillance and then plac-
ing the results of this surveillance in public view. The problem with such
practices, on her account, is that they result in an individual acting upon
false assumptions regarding what others know about her, compromising
her ability to engage in authentic behaviour toward others. However, even
if one accepts this account, it does not show why the publication of private
facts is problematic: prior to their publication, one acts under the true as-
106 Beate Rssler, The Value of Privacy, trans. by R.D.V. Glasgow (Cambridge, U.K.: Polity
Press, 2005) at 73 [emphasis in original].
107 See ibid. at 50-73. I have adopted a similar account to help understand some aspects of
privacy (Austin, supra note 41). See also Jeffrey H. Reiman, Driving to the Panopticon:
A Philosophical Exploration of the Risks to Privacy Posed by the Highway Technology
of the Future (1995) 11 Santa Clara Computer & High Tech. L.J. 27.
108 Rssler is not making a claim about a legal right to privacy and argues that her under-
standing of privacy still permits one to draw further distinctions between legal, moral,
and conventional claims to privacy (Kant, supra note 89 at 75).
109 See ibid. at 116-17.
PRIVACY AND PRIVATE LAW: THE DILEMMA OF JUSTIFICATION 201
sumption that such facts are not generally known and after their publica-
tion, one acts under the true assumption that such facts are now gener-
ally known. Indeed, the problem of false assumptions can be generally
remedied though widespread publication and dissemination of private
information as much as through respect for privacy norms. Once the re-
sults of surreptitious surveillance are publicized, there is no problem of
false assumptions and therefore no problem regarding authenticity.
Rssler has a slightly different rationale for why known surveillance is
problematic. When an individual knows that she is being observed, she
adapts her behaviour accordingly. This adaptation, according to Rssler,
also interferes with authenticity: one acts in ways one would not have
acted if unobserved. The problem is that instead of having ones behaviour
issue from ones own beliefs and values, one instead acts in reaction to the
reality of observationobservation that therefore inhibits an authentic
relation with ones self. However, even if one accepts this account, it still
does not show why the publication of private facts is problematic. In the
typical fact scenario of such a case, one does not know that one is being
observed until after publication. When Naomi Campbell attended Narcot-
ics Anonymous, she did not know that she was being observed and so did
not change her behaviour in response to this observation. The subsequent
publication of the details of her treatment does not change the character
of her original action. To say, had I known this would be in the papers I
would not have engaged in this behaviour does not mean that the origi-
nal behaviour was inauthenticit just means that you did not want oth-
ers to know of it. Part of the difficulty is that if privacy protects self-
relation with respect to some behaviour, then it is unclear how publicity
that is unanticipated and that occurs after-the-fact could retroactively al-
ter this self-relation, thereby rendering the behaviour inauthentic. The
only case that Rsslers view of known surveillance could account for is
when publication, because of its predictability or prevalence, effectively
amounts to a kind of anticipated surveillance that would have the inhibit-
ing effects she describes. This might include instances where certain ce-
lebrities are routinely followed and hounded by the press.110
A similar version of the authenticity thesis is one that I have put for-
ward in the past: in presenting yourself to others (e.g., when you are in
public), your presentation is governed by the norms applicable to that par-
110 This analysis might catch a case like Von Hannover where the European Court of Hu-
man Rights found the publications of photographs of Princess Caroline involved in a
number of everyday activities to be a violation of her privacy under article 8 of the
ECHR (supra note 63) but in doing so stressed factors such as a climate of continual
harassment that such photos induced in the particular circumstances. See Von Han-
nover, supra note 41 at para. 59.
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ticular context. We require some respite from this context if we are to
fully affirm those aspects of our thoughts and identity as in fact ours and
not a simple response to the desire to conform to these norms of presenta-
tion.111 Although this accounts for some of our intuitions regarding why
privacy is valuable, and shows why a society of widespread surveillance is
problematic, it also faces difficulties in accounting for the legal right to
privacy as we find it in tort law. It is one thing to argue that we need
some respite from the public gaze in order to forge an authentic self, and
quite another to assert that the particular gaze of a particular other in
fact interferes with this project of authenticity.
A more promising account of privacy views the value of privacy as pro-
tecting ones identity rather than ones authenticity, autonomy, or free-
dom from harm. Before I outline why an identity-based account avoids the
difficulties inherent in an authenticity account, let me outline why it also
provides a route out of the justificatory dilemma.
Liberal justifications for rights based upon notions of either harm or
coercion remain neutral with respect to the particular ends of individuals
affected. Indeed, this is consistent with a general view of the common law,
and the role of the courts, whereby the common law protects a realm of
individual freedom rather than a particular vision of the good. Because of
this, private law discussions often proceed in abstraction from the particu-
larities of any individuals actual identity, including their beliefs, desires,
and needs.112 Nonetheless, this does not mean that the law should be un-
concerned with an individuals capacity to construct his or her identity.
Indeed, one could argue that liberal accounts of rights either presuppose
or at least are strongly compatible with the idea that individuals have an
identity and that individuals have the capacity to participate in its con-
struction.
The idea of identity at stake here is not my own idea of myself result-
ing from a process of self-reflection and does not rely upon any idea of a
true, inner, or authentic self. Instead, the idea of identity that I want
to invoke is that of the self that one presents to othersones public
persona, or social self.113 This self that is presented may or may not dif-
fer in relation to different others, and may or may not vary over time,
111 Austin, supra note 41 at 146.
112 Weinribs version of formalism provides an extreme example of this: Ernest J. Weinrib,
The Idea of Private Law (Cambridge, Mass.: Harvard University Press, 1995).
113 The language of self-presentation involves an implicit reference to Goffman (supra
note 6). For an account of how the idea of self-presentation is linked to the experience of
shame, see J. David Velleman, The Genesis of Shame (2001) 30 Philos. & Pub. Aff. 27.
PRIVACY AND PRIVATE LAW: THE DILEMMA OF JUSTIFICATION 203
across contexts and social roles in contradictory ways.114 In short, this is a
very thin notion of identity that focuses simply on ones ability to pre-
sent oneself to others. It is therefore quite different from ideas of identity
that have been invoked by other legal theorists. For example, some out-
line the connection between privacy and identity in terms of personhood,
which itself is variously understood in terms of the protection of choices
that are seen as intrinsic to ones identity,115 the integrity of ones iden-
tity,116 and the conditions under which a society recognizes that an indi-
viduals existence is his own.117 Others argue that privacy protects the
capacity of individuals to withdraw from the demands of social interaction
in order to protect the development of individuality or even authentic-
ity.118 In contrast, one can be concerned about an individuals capacity for
identity formation in the sense of self-presentation while remaining in-
different to these other questions regarding the particular nature and
quality of ones identity.
Although identity, on this understanding, is always constructed in re-
lation with and to others, it is problematic from the perspective of liberal-
ism to posit that this identity is fully constructed by others. Therefore,
just as the claim that one has complete self-sovereignty over identity is
implausible, so too is the claim that one has no role in its creation. There
must be some capacity to participate in the construction of ones iden-
titysome ability to determine whether some elements are disclosed to
others, to whom they are disclosed, and in what circumstances.
Although a full account of the relationship between this idea of ones
capacity for identity formation and justifications for legal rights is beyond
the scope of this paper, this argument at least establishes the plausibility
of this claim. Identity therefore provides a potentially fruitful way out of
114 There is some emerging legal scholarship that looks at the relationship between privacy
and identity in a manner that recognizes the relational aspect of identity rather than
making an identity simply a matter of ones own view. For example, Brian C. Murchi-
son proposes that the American public disclosure action rests on a concept of privacy as
liberty to develop character through close, dialogic relationships with others: Brian C.
Murchison, Revisiting the American Public Disclosure Action in Kenyon & Richard-
son, supra note 48, 32 at 55.
115 See e.g. Jean L. Cohen, Is There a Duty of Privacy? Law, Sexual Orientation, and the
Construction of Identity (1996) 6 Tex. J. Women & L. 47 at 76ff.; Aaron J. Rappaport,
Beyond Personhood and Autonomy: Moral Theory and the Premises of Privacy (2001)
Utah L. Rev. 441 at 452.
116 Jonathan Kahn, Privacy as a Legal Principle of Identity Maintenance (2003) 33 Seton
Hall L. Rev. 371.
117 Jeffrey H. Reiman, Privacy, Intimacy, and Personhood (1976) 6 Philos. & Publ. Aff. 26
at 39.
118 Rssler, supra note 106; Austin, supra note 41.
204 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
privacys justificatory dilemma by positing an alternative to autonomy or
harm as the justification for the imposition of legal liability. Distinct from
values such as autonomy, identity still fits within a recognizable family of
liberal interests that underpin much of our liberal legal tradition and pro-
vide the justification for legal liability. One could even argue that to be
harmed or to act autonomously presupposes an individual who at least
has this bare capacity for identity formation, however poorly it may be ex-
ercised. Nonetheless, it remains to be seen whether identity can provide a
compelling basis for understanding privacy. What does an identity ac-
count of privacy look like and how does it differ from other accounts?
Once we turn to identity as our central focus, a privacy claim must be
conceived in terms of protecting the conditions of self-presentation rather
than as a claim to insulate us from the social pressure that might result
from a particular self-presentation. Basic to this idea of self-presentation
is the requirement that you know the who to whom you present your-
self. It is not the case that you present yourself to the world in general,
and then particular others may or may not think well of this presentation
for a myriad of reasons. The claim here is that the very idea of self-
presentation includes the idea of presentation to someone, to an audience.
It is not a kind of bare self-assertion but an act of social communication
an act that depends upon knowing the who to whom one is communicat-
ing. Knowledge of this who therefore does not go simply to ones effec-
tiveness in creating an identity but to ones basic capacity for doing so.
Privacy violations involve disruptions in this communicationfor exam-
ple, by changing the identity of ones audience through surreptitious sur-
veillance or unexpected publication.
Consider the following two examples of information disclosure, one of
which is a privacy violation, and one of which is not. First, suppose that
you tell another academic colleague, X was invited to visit Yale. You
have disseminated information about X to another colleague, but few of us
would consider this gossip. Contrast this with a second scenario, in which
you instead tell your colleague, X is having an affair with Y. Now you
have disseminated information about X to another colleague and most of
us would consider this to be gossip. The difference between the two sce-
narios is that in the second you have passed along information that X
would likely not want other professional colleagues to know about. It is in
this sense private where private simply refers to information that one
would not want to be part of ones self-presentation to a particular audi-
ence. In contrast, in the first example it is unlikely that X did not want
her work colleagues to know that she had been invited to visit Yale even if
she had not yet told them. The difference between the two examples
what makes the second gossip and the first merely the dissemination of
social knowledgeis the fact that one involves private information
whereas the other does not. Moreover, we can understand what private
PRIVACY AND PRIVATE LAW: THE DILEMMA OF JUSTIFICATION 205
means through reference to the idea of self-presentation rather than some
inherent features of the information itself or the delineation of a private
sphere. For example, the things that we conventionally label private in
relation to our professional lives are the things that most of us would not
want to be part of our self-presentation in a professional context. In this
way, conventional markers are helpful in that they alert us to situations
where individuals might not have wanted information to be disclosed to a
particular audience. (For example, most of us would think it is inappro-
priate for employers and colleagues to find out about ones sexual history.)
But they are a proxy for the individuals determination regarding the
self that she wants to present to a particular audience.
This analysis of privacy in terms of self-presentation highlights an im-
portant difference between an identity account of privacy and a harm ac-
count of privacy. Importantly, the focus is on the self-presentation aspect,
and not on how this presentation is received or dealt with by the intended
audience, or on the social pressure that others may bring in relation to
particular presentations. Therefore, on this account, the United States
and New Zealands limitation of liability to publications that are highly
offensive is mistaken. Instead, this approach would endorse the House of
Lordss position that described the test for offensiveness as helpful to the
identification of a privacy violation in cases where it was unclear.119
However, an identity-based account of privacy would also call into
question some of the features of the U.K. position regarding confidential-
ity. First, while a focus on self-presentation retains a relational compo-
nent to privacy that is analogous to confidentiality, it is nonetheless a
much broader notion of relationship. Ones capacity to present oneself to
others does not depend on a confidential relationship with others even if it
does depend on knowing who the others are. Second, the U.K. position on
confidentiality left open the question of whether publication was required
for liability, or whether mere disclosure of private information is suffi-
cient. As I outline below, a violation of privacy understood in terms of a
capacity for self-presentation will usually require publication.
The mere dissemination of private information does not necessarily
imply a violation of privacy. If privacy is a claim to protect the conditions
of self-presentation, then a violation of privacy will occur only when the
dissemination of private information also undermines ones capacity for
self-presentation. It is not the case that simply passing along information
about X that she would not wish to pass along undermines her own self-
presentation to others. Schoeman helpfully observes,
119 Campbell, supra note 1 at para. 94.
206 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
We surely invade a colleagues privacy if we announce at a meeting
that she and our secretary are having an affair. Norms of privacy
make this sort of disclosure unconscionable. Norms of privacy, how-
ever, do not make it seem as serious, or even at all serious, if we
simply privately relate the same information to each person in the
department. What we mean by privacy, then, or invading a persons
privacy, is not the fact of disclosing personal information to a variety
of people without the consent of the object of discourse, but the
means by which the private information is distributed. Thus, charac-
terizations of gossip as revelation are incomplete or misleading. We
must differentiate dissemination from publication. Publication
means dissemination plus the conversion of a matter that is personal
into a matter that is open or acknowledged as a public fact.120
For Schoeman, the significance of public facts is that they bring with
them a set of norms whereby it is appropriate for others to hold you ac-
countable for such facts and to use social pressure to do so. Since gossip
operates behind the back and does not deal with public facts, it permits
a person to maintain a public face insulated from this pressure.121 Placed
in terms of an account of privacy as protecting the conditions of self-
presentation irrespective of any attendant social pressure, we can say
that the dissemination of private information affects ones self-
presentation only when it becomes a public fact. For example, upon
publication that X is having an affair with Y, X has little choice but to
make this information part of her self-presentation, or to revise some
element of her self-presentation to reflect this. Unlike in the case of the
colleague who knows about the affair but does not let on that he knows,
she can no longer save face or maintain her original self-presentation as
if nobody knows.122 This can account for why American privacy law has
generally not imposed liability for gossip unless the information is pub-
lished.123
We can see the difference that the publication requirement makes by
re-examining Campbell. Naomi Campbell did not want to disclose to the
public any information, either of a general or specific nature, regarding
her treatment for drug addiction. For this reason, we can say that the
Daily Mirror disseminated private information. The salient distinction
is not between public and private spheres of life, but rather between the
types of audiences to which Campbell did and did not want to present this
120 Schoeman, Gossip, supra note 74 at 80-81.
121 Ibid. at 81.
122 This can also explain why so many people feel shame upon such disclosures. As Velle-
man argues, the experience of shame is closely linked to inadequacy in ones capacity
for self-presentation (supra note 113 at 38).
123 See Post, supra note 70. It should be noted that a gossiper might nonetheless be liable
in defamation law even if the remarks are not published in this sense.
PRIVACY AND PRIVATE LAW: THE DILEMMA OF JUSTIFICATION 207
aspect of her self. However, although this information is private in rela-
tion to the general public, its dissemination is a violation of privacy only
upon publication. The significance of publication is that once published,
Campbell has little choice but to make this information part of her self-
presentation, or to revise some element of her self-presentation to reflect
or contest this. She cannot save face and carry on as if nothing hap-
pened.
There may of course be justifications for this violation of her privacy
and, indeed, in this case all of the Law Lords agreed that the Daily Mirror
was entitled to set the record straight regarding the fact that Campbell
was addicted to drugs since she had publicly claimed that she was not.
One could argue that if we decide to present some aspect of ourselves to a
particular audience then that audience is entitled to pry in order to de-
termine if those aspects are in fact accurate. The point is that we can un-
derstand the nature of the privacy violation at issue without reference to
a general idea of a private sphere distinct from the public, or ideas of
confidentiality, or ideas of harm.
This analysis of privacy as protecting the conditions of self-
presentation can also show why there was a privacy violation at stake in
the Hosking case and why the New Zealand Court of Appeal should not
have so easily dismissed the idea of privacy in public. The capacity for
self-presentation of children as young as the Hosking twins is, of course,
limited. However, we can accept the parents presentation of them as a
reasonable proxy. We can agree that in pushing the children in a stroller
in public, the mother presents her children to the people who are in that
public place. However, she does not necessarily choose the audience; be-
cause it is a public place, others are entitled to be physically present and
their observation is incidental to this.124 Therefore, from this descriptive
fact of being in public one cannot infer the normative implication that
Mrs. Hosking would have chosen to present her children in this way to
the additional and quite different audience of a particular publication who
might view a photo of them. Because it forces a new audience upon her, it
undermines her capacity for her own and her childrens self-presentation.
Moreover, unlike the people she meets while in a public place, the audi-
ence of a particular publication lacks an immediate justification for their
observation of her and her children. Given this, the approach of the Eng-
lish Court of Appeal in Murraywhich on similar facts accepted that the
child had a legally significant privacy interestis much more defensi-
ble.125
124 Austin, supra note 41.
125 See Murray, supra note 23.
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This is not to say that there are no compelling justifications for the
dissemination of private information through publication. There may be
many justifications for what would otherwise be privacy violations. In par-
ticular, it seems reasonably clear that if you have to interact with a per-
son in a particular context, you are entitled to information about the per-
son that is relevant to that interaction, even if that person would not wish
you to have it. The demands of others can and do limit individual claims
to control over self-presentation. We might therefore claim: we all have
the ability to talk about other people behind their backs and to talk in
front of their faces about things that are relevant to our relationship. Ob-
viously much more work would need to be done to fully delineate the rela-
tionship between freedom of expression and privacy understood in terms
of self-presentation. Nonetheless, the brief account here suggests several
possible conclusions regarding this relationship. First, freedom of expres-
sion does not obviously trump privacy and vice versa. Second, even
though these rights might be in tension in particular factual circum-
stances, they are not in fundamental opposition: both freedom of expres-
sion and privacy understood in terms of ones capacity for self-
presentation protect expressive activity. The balancing approach en-
dorsed by courts in both the United Kingdom and New Zealand is there-
fore more easily justified than that of the United States, where freedom of
expression has essentially engulfed the tort of publication of private facts.
Even if publication is generally necessary, is it always necessary in
order to find a violation of privacy? For example, it might be that your
self-presentation is affected by the dissemination of private information
even in the absence of publication if your reputation is altered to such an
extent that people interact with you as if you are a different person from
the self you present. You then have no capacity to present yourself as
other than this person even though in some sense this gossip retains its
behind-the-back quality. The difficulty for ascribing tort liability in such a
situation would lie in identifying a wrongdoer rather than in identifying a
wrong. That is, each individual who participates in the gossip does not
violate privacy merely through the dissemination of private information
although the cumulative effect of this might be to undermine ones capac-
ity for self-presentation. Perhaps if the information is of such a nature
that one could reasonably foresee such effects of further dissemination,
then it is a privacy violation even without meeting the publication re-
quirement. The American tort of giving publicity to private facts does not
foreclose this possibility.126
126 It remains to be seen whether a disclosure not equivalent to the giving of publicity will
be actionable when the obtaining of the information was not tortuous in character (Re-
statement 2d 652D, supra note 15).
PRIVACY AND PRIVATE LAW: THE DILEMMA OF JUSTIFICATION 209
Privacy understood as a claim to protect the conditions for self-
presentation is therefore promising for a number of reasons. First, be-
cause it does not rely on what an audience does, we do not have to identify
a threshold of harm or form of coercion in order to impose legal liability.
Second, it provides a compelling justification for why legal liability should
follow from the publication of what would otherwise be gossip. Third, it
provides a plausible basis for asserting that freedom of expression needs
to be balanced against the protection of ones capacity for identity forma-
tion rather than engulfing it. Finally, this capacity is capable of being de-
finedand much more needs to be done than is presented hereand
therefore provides the basis for differentiating privacy violations from
other types of legal wrongs in a manner that can potentially address con-
cerns regarding the vagueness of privacy claims. In this way it provides a
promising approach to understanding the nature of the wrong at issue in
privacy rights, and therefore a way of developing a privacy tort that re-
sponds to the justificatory dilemma without retreating to an overly nar-
row view of liability.
Conclusion
Although there is an emerging consensus regarding the need for pri-
vate law protection for privacy, at least in the context of the publication of
private facts, this paper has argued that the resulting jurisprudence ex-
hibits a number of important tensions. Many of these tensions revolve
around the questions of whether harm is required to give rise to liability
for infringement of privacy, whether private refers to a category distinct
from confidential, and the question of the role played by freedom of ex-
pression. This paper has argued that the tensions in the case law are not
best understood in terms of the privacy impulse that underpins this
emerging consensus but rather the containment anxiety that motivates
courts to seek strong limits upon the scope of protection provided. In turn,
this containment anxiety is best explained through reference to the
courts search for either the kind of harm or the kind of coercion that
could justify the imposition of a legal obligation to respect anothers pri-
vacy. In this way, the privacy impulse surfacing in case law is undercut by
a justificatory dilemma.
In response to this justificatory dilemma, I have argued that the right
to privacy does not protect one against harm or coercion. Instead, it pro-
tects ones identity where this is understood in terms of ones capacity for
self-presentation. Not only does this approach provide a compelling justi-
fication for the imposition of legal liability in contexts such as the publica-
tion of private facts cases, but it also provides a clear account of the na-
ture of the wrong at issue in such cases and so illuminates something im-
portant about the nature of privacy.
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Such an account could potentially help courts to understand the con-
nections between various types of privacy claims, providing more credence
to the idea of a high-level principle of privacy that does in fact have an
accessible conceptual core. Indeed, an account of privacy as protecting the
conditions for self-presentation has the potential to unite the four
branches of the American tort of invasion of privacy. Apart from the pub-
lication of private facts branch, the law also provides relief against false-
light advertising, misappropriation of name or likeness, and intrusions
upon seclusion. Despite Prossers influential argument that these four
branches in fact protect four separate interests, one could argue that the
four branches in fact protect against four different kinds of violations of
ones capacity for self-presentation.127 For example, publishing an adver-
tisement that indicates an endorsement of a product puts words in the
plaintiffs mouth that he or she has not chosen. Surely this is the most ba-
sic sense in which one has a capacity for self-presentationto choose
what one wishes to express and to whom. This capacity is also under-
mined when another appropriates ones identity and uses it without
consent. Similarly, intrusions upon seclusion change the audience of ones
self-presentation against ones wishes. Such an account might also pro-
vide the basis upon which to relate the tort of invasion of privacy to statu-
tory privacy regimes modelled upon fair information practices and
which generally provide individuals with rights relating to the collection,
use, and disclosure of their personal informationa set of interests that
commentators increasingly discuss in terms of protecting an individuals
digital persona.128
An understanding of privacy in terms of the protection of the condi-
tions for self-presentation, and its relationship with various types of legal
regimes purporting to protect privacy, obviously requires much more
elaboration. However, the claim here is that such an account not only is
compatible with liberal justifications for legal rights, but also may help us
understand a wide range of privacy claims in a manner that is difficult if
we remain focused on definitional difficulties, or traditional analyses of
harm or coercion. In this way, examining what I have been calling the
justificatory dilemma provides not just a more compelling analysis of the
containment anxiety present in the cases, but also a shape to the privacy
impulse that is emerging.
127 Prosser, supra note14.
128 See e.g. Clarke, supra note 6; Daniel J. Solove, The Digital Person: Technology and Pri-
vacy in the Information Age (New York: New York University Press, 2004).
