The Right to Privacy: A Sceptical View
Geoffrey Marshall *
Privacy is at present a fashionable and popular commodity but
a curiously elusive one. Even its pronunciation is uncertain.’ Can
we form a clear and comprehensive notion of it? The fact that it is
one of the things guaranteed to us in the Universal Declaration of
Human Rights might well give us grounds to suspect that we cannot.
So might some of the definitions offered by those who have written
about it. The author of a well known American study, Professor
Alan Westin, says that it is in the first place “the state of solitude
or small group intimacy”.2 Though small group intimacy sounds
like something ripe for exposure in the News of the World, it is
obviously, as Westin recognizes,3 only a part of an acceptable defini-
tion.
This uncertainty gives rise to disagreements about policy. In July
1972, the British Younger Committee concluded that there was no
satisfactory definition that could be used for the purpose of enacting
a general law to protect privacy and that no such law was needed
Two years earlier, however, a committee set up by the Justice Society
said that there was an urgent need for legislation to create a new
statutory tort of infringement of privacy 5 and several draft bills have
been drawn up for the purpose.
There are, I think, a number of different reasons for this general
state of muddle. One is the tendency in the past to produce incom-
plete or over-general definitions. The original begetter of the notion
as a legal term of art, Thomas Cooley,6 simply spoke of the right “to
* Fellow, Queen’s College, Oxford.
1 The OED and Englishmen used to recognize only privacy (long i). But more
probably now say privacy (short i) – possibly due to the quickening pace of
modern life. Oddly, Americans whose pace quickened long ago used to say
privacy (short i) but often now say privacy (long i). Nothing at all similar
has happened to primacy or piracy.
2 Privacy and Freedom (1967), 7.
3 Ibid., 7: he adds that privacy involves the right of individuals, groups and
institutions to determine how and to what extent information about them is
communicated to others.
4 Report of the Committee on Privacy, Cmnd.5012 (1972).
5 Justice (Society), Privacy and the Law; a report (1970).
6 The Elements of Torts (1895), 9.
19751
THE RIGHT TO PRIVACY: A SCEPTICAL VIEW
be let alone” and this was taken up by Messrs Brandeis and Warren
in their article The Right to Privacy published in 1890 A quite
natural response to the assertion of a right to be let alone is the
query “To do what?”: to go on battering the baby, or cheating
the Inland Revenue, or poisoning the customers?
An example of over-general definition is found in the last ditch
attempt of the 1970 Justice committee 8 to salvage something from
the conceptual flux. What they ended up with was “that area of a
man’s life which in any given circumstances a reasonable man with
an understanding of the legitimate needs of the community would
think it wrong to invade”. 9 This produces an extra reason for con-
fusion: namely, the running of the problem into that of the general
issue of liberty and the limits of state action. Talk about commu-
nity needs and reasonable men simply brings out the awareness
that we are dealing with only one side of a relationship. There is no
very clear area involved, since an area of life just means actions or
activities and it is clear to most people that the right to keep our
actions free from the intervention of others is subject to fairly
continuous modification. We don’t even hope to be let alone by the
criminal law, the town planner, the gas meter inspector or the
customs officer. Warren and Brandeis in fact equated the right to be
let alone with “the right to life” which they said “has come to mean
the right to enjoy life”.’ But protecting the right to enjoy life (by
compulsory vaccination or Clean Air Legislation) will often mean not
letting people alone.
There is a further ground of confusion caused by the fact that
the contrast between what is private and what is or should be public
(or non-private) occurs in a number of different fields, and the
distinction in each field may be different. Differing public-private
distinctions are found, for example, in discussions of the limits of
criminal sanctions, civil liberties, and libel.
Privacy and the Criminal Law
Let us take first arguments about the use of the criminal law,
where assertions about privacy and private morality are common.
“Private morality” is a misnomer for some such periphrasis as “the
rules or morality that define the area of protected private behaviour”.
7 (1890-91) 4 Harv.L.Rev. 193, 195.
8 Supra, f.n.5.
9Ibid. Cf. Report of the Committee on Privacy, supra, f.n.4, particularly
ch.4.
10 Supra, f.n.7, 193.
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But “private” here suffers from the ambiguity stemming from the
supposition on the one hand that it describes some physically
secluded area or activity and, on the other hand, that it labels or
nominates some activity as deserving immunity from social or legal
interference. It happens to be the case that some activities often held
to be private or immune from interference in the second sense are
frequently (as in the case of sexual activities) private in the descrip-
tive physically secluded sense; in such cases, their immunity is
often justified by the right to privacy.
But the first sense is perhaps an irrelevant distraction since it
is never conclusive in itself. An adult consenting Englishman’s home
is only his castle up to a point and not if he uses it to grow cannabis,
slaughter animals or hire out women, however privily these activi-
ties are confined between four privately owned walls. Nobody since
(and including) John Stuart Mill has been able to describe any
particular area or type of activity to which the term “self regarding”
or “immune” activity could be attached.
Most attempts to establish a libertarian circle around the indivi-
dual are concerned with the consequences or impact of his actions
either on others or on himself. A recent American author” writing in
the Mill tradition on what he calls “the criminal threshold” de-
scribes activities that ought to be left free from legal interference and
mentions several categories ripe for privacy or immunity. One is
“activities where there are no visible external consequences that can
rationally be shown harmful to the community or to individuals in
it”. 2 (The emphasis on “visibility” seems to suggest that discreetly
slaying one’s enemies might be allowable if done by hypnotism,
laser beams or one of those rare fictional poisons that leave no trace.)
The other categories include activities whose prohibition is generally
unenforceable (I suppose on the assumption of some standard
degree of undermanning in the police force), and activities that are
no longer generally considered criminal (perhaps by a majority of
51 percent, or by persons specially trained to recognize non-criminal
forms of crime). Whatever we think of these categories, however,
they do not name any particular area or type of activity.
In general privacy has not much to do with the limits of the
criminal law. It is not, for example, the reason why some people
think the law should be kept out of labour relations or the enforce-
ment of betting and gambling debts. But sometimes privacy argu-
ments do seem to play a part. A plausible example perhaps is the
11 Paul R. Wilson, The Sexual Dilemma (1971).
12 Ibid.
1975]
THE RIGHT TO PRIVACY: A SCEPTICAL VIEW
American decision in 1965 in which the Supreme Court held (in
Griswold v. Connecticut)13 that married persons in Connecticut could
not be prohibited from using contraceptives. Here the court made
specific reference to the Fourteenth Amendment’s protection of the
rights of “privacy and repose”. It was said that it would be repugnant
to the notions of privacy surrounding the marital relationship to
allow the police “to search the sacred precincts of marital bedrooms
for telltale signs of the use of contraceptives”. 14 But in what sense
is privacy as distinct from some more general notion of liberty the
deciding factor here? There were independent reasons for holding
that the prohibitory statute violated the Fourteenth Amendment. It
was over-broad and ineffective as a means of achieving the legisla-
ture’s professed end of controlling promiscuity. It certainly involved
a matter of individual conduct where the choices involved could not
be said to be primarily aimed at or to affect other people. So does the
talk of the sacred precincts of the marital bedroom make any
difference? Would it be all right if the pills were lying about in the
dining room? Suppose that we substitute heroin or gelignite for
contraceptives. Would the bedroom door no longer be a barrier? Or
could the State properly authorize its agents to rummage even under
the mattress? If persons can for proper reasons be searched, why
not premises: is the bedroom more sacred than the trouser pocket?
My point is that though some rights such as those to be free
from unreasonable searches or from tapping of one’s telephones or
interferences in sexual behaviour can plausibly be described as inter-
ferences with privacy when done in circumstances in which we
know the interference to be wrong, privacy as such rarely seems to
aid in determining what those circumstances are. Another example
may illustrate this. The Supreme Court has ruled 5 that state laws
cannot forbid a woman to have a medically approved abortion in
the first three months of pregnancy, mentioning once more the right
to privacy. However, it is difficult to see how the interference with
privacy is any less if the abortion is in the seventh or eighth month,
or if it is sought for non-medically approved reasons. If we call
decisions about our own bodies “private”, what is it that makes some
decisions about what we put into or take out of them rightly immune
from interference and others not? Decisions about abortion where
a developed foetus is involved of course bring in arguments about
the impact of actions on other persons (assuming that we can
13 381 U.S. 479 (1965).
‘4 Ibid., 485-6.
15Roe v. Wade 93 S.Ct. 705, 410 U.S. 113 (1973).
McGILL LAW JOURNAL
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decide when a foetus is a person). But neither that decision nor any
consequent reasoning about the propriety of abortion is much helped
by the privacy notion. Liberated women who believe that abortions
should be available on demand do not, I think, base their arguments
on any special claim about privacy.
Privacy also enters on occasion into arguments about free speech
and the right to silence. Privacy, for example, is often connected via
the freedom of private conscience with the freedom of speech and
belief and the right to keep one’s beliefs to oneself. Thus the
privilege of non-self-incrimination or the right to remain silent on
a criminal charge is frequently said to be the corollary of the right
to speak, and is thought to be justified by the notion of privacy.
This argument should, I think, be viewed with suspicion. It raises
a number of questions. For example:
1) Does the right to speak out in most or all circumstances entail
the right to keep silent in all or most circumstances? I don’t think
that it does, or that they would necessarily be the same circums-
tances.
2) Is it the case that the right not to incriminate oneself is justified
by the right to privacy? The history of this right and of the
related principles in the law of evidence does not suggest that it
is.
3) How close is the connection between privacy and the freedom
of expression? If we connect one too closely with the other, some
curious conclusions may follow, in view of the recent tendency
to extend the notion of free speech into the area of what is
sometimes called “symbolic speech”, or expressive actions that
in some way or other manifest beliefs. Thus privacy entails the
right to keep silent, which derives from the right to speak out,
which may properly be exercised in the form of symbolic speech
and expression in political and artistic matters, which suggests
that public commercial displays of copulation should be consti-
tutionally immune from prosecution by reason of the right to
privacy. Something like this argument has been used in Califor-
nia.”0
16 In In Re Gianni 446 P.2d 535 (1968), 540, the California Supreme Court
extended the protection of the First Amendment to a nightclub dancer charged
with indecent exposure. Her specialty was described as “30 seconds of
wriggling around on her hands and knees with her breasts exposed”. The
Court held that “The First Amendment cannot be constricted into a straight-
jacket of protection for political expression alone. It extends to all forms
of communication”.
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THE RIGHT TO PRIVACY: A SCEPTICAL VIEW
Privacy and Discrimination
Let us turn now from the criminal law to, in a broad sense,
constitutional and public welfare issues. Arguments about privacy
have been thought to play a part here in demarcating a different
kind of dividing line between an area of public obligation and an area
of individual choice. In Britain and America, legislative or consti-
tutional provisions aim to secure equality and impartiality of treat-
ment for citizens. Nevertheless, it is clear that this policy collides at
some point with the principle of promoting free choices in the use
of property and other resources and with desires to be let alone or
to be exempt from the requirement of acting in an impartial way
towards others.
One conceivable principle for defining the scope of the obligation
to observe impartiality (which was once written into the American
constitution, but has since been written out of it again by the
Supreme Court) is that the duty is not one to be imposed by law on
private persons at all but is only one that falls on state or public
agencies.17 The application of this principle brings out the many-
sidedness of the public-private distinction. Here “private” simply
means “non-governmental” and “private activity” means unofficial
or non-state activity. The borderline is a fuzzy one. To delimit the
right to equal treatment against state or lublic agencies as being
one that lies against official or governmental bodies is unclear to the
extent that the criteria for being a governmental body are unclear.
Are central government institutions in question or are local ones
included? Do we count regulatory bodies or corporations appointed
by politicians but engaged in commercial operations? Do we include
bodies of whatever kind operating with public money or subsidized
from taxation, such as universities or charities? (In a sense, this
corrals almost everybody since almost all taxpayers are in part
subsidized or supported by allowances or welfare payments derived
from taxation.)’ 8
17The trend of decision during the past forty years on, for example, white
primaries, property and fair housing, and civil rights legislation, has been
towards the obliteration of any clear distinction between discrimination by
state or public bodies and by unofficial or private bodies. Samples are Shelley
v. Kraemer 334 U.S. 1 (1948); Katzenbach v. McClung 379 U.S. 294 (1964); and
Reitman v. Mulkey 387 U.S. 369 (1967).
18 Since in the United States state libel laws cannot penalize citizens for
non-malicious defamatory utterances directed against the conduct of public
officials, the public-private borderline is important for free speech pur-
poses, too.
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This principle, good or bad, has however been eroded in the
United States by two arguments, neither of which carries complete
conviction. One is that the state or government acts in a discrimina-
tory way whenever it permits others to use its laws to discriminate
or when it has no laws to prevent others from discriminating. The
other argument steals tacitly back and forth between two senses
of the term “public”. It runs as follows: Some persons offer goods
or services or accommodation to the public (i.e., people in general).
Thus they cannot be entirely private. Thus they must be public. But
public (i.e., state or governmental) activities are caught by the consti-
tutional guarantee of equality under the law. Therefore the activities
are properly subject to rules against discrimination.19
The temptation to use this and similar arguments derives from
a feeling, which may be perfectly justified, that private individuals
ought not to be free from legal obligations to treat other persons
impartially at least up to a point. The point, however, is not very well
defined. One attempt to locate it occurs in Professor David Raphael’s
Problems of Political Philosophy.20 He suggests that the duty of
impartiality only arises for private individuals where they are
exercising a role of authority or guardianship, such as judges, police-
men or civil servants. If what is in question is a moral duty, it would
not of course follow that it ought on that account to be made a legal
duty. But it may well be intended that the guardianship or authority
role principle should provide a criterion for potential enforcement
legislation aimed at discriminatory activity.
If this is so, we need, I think, some clear idea of what roles of
authority and guardianship are. Is the role of employer, for example,
such a role? Or does it depend on the size of the work force or the
degree of paternalism exerted over it? At least some activities, such
as those of shopkeepers or householders, seem plainly not to be roles
of authority. Professor Raphael concedes this where he says that if a
shopkeeper chooses to give credit to his friends, that is his own
affair.21 Having enunciated the principle, however, Professor Raphael
seems to treat it rather lightly since he says that it may be right to
impose a duty of non-discrimination even where no such roles arise
19 In Bell v. Maryland 378 U.S. 226 (1964), a “sit-in” case, it was said that
“private property is involved but it is property that is serving the public”
(Douglas J., 252). Mr Justice Black, dissenting, thought that the Constitution
in itself did not prohibit storekeepers or property owners from choosing their
customers or business associates (at 343).
20 D.D. Raphael, Problems of Political Philosophy (1970).
21 Ibid., 130. I am not sure whether the same would be true of publicans
and brothel keepers.
1975]
THE RIGHT TO PRIVACY: A SCEPTICAL VIEW
(and where according to the principle no moral duty to act im-
partially exists) on employers, hotel owners and property sellers.
The suggested reason for imposing the obligation is that their free-
dom to discriminate has the effect of depriving a group of people
of benefits generally acknowledged to be common rights 2
This smells of circularity because what are held to be rights must
depend upon what rules and what legitimate exceptions are agreed
upon. This is what is in issue and there is not a very obvious con-
sensus about it, partly because many people believe in an inarticulate
way in some version of the maltreated public-private principle
despite legislation that clearly cuts across it, particularly in the
fields of advertising, employment, housing and sexual equality. We
have not yet got a full-blooded prohibition on private discrimination
against women, but no doubt we soon shall have. In the United
States, there are pressure groups devoted to putting down not only
racism and sexism, but “heightism” and “uglyism”: the denial of
equal status to those innocently handicapped by smallness of stature
and lack of physical attraction.
Privacy, Intrusion and Exposure
To what extent is privacy a candidate for further specific pro-
tection by the extension of existing civil and criminal liabilities? An
argument against establishing a general right to privacy might be
seen in the fact that it is so pre-eminently a notion that takes its
colour and meaning from the many different things that we may
contrast it with. In different contexts it may be a synonym for
seclusion, secrecy, individuality or unofficial status, just as its
correlative adjective “public” may mean non-secluded, non-con-
fidential, general or governmental. Public rights in several senses
are relevant when considering a possible right to privacy.
There isn’t a right of privacy in the sense that there may be
a right to an old age pension. Privacy is more like (and indeed is)
a special case of liberty. There are some rights to some of it in some
circumstances, and they may be better protected piecemeal than by
a Right to Liberty bill which would be more trouble than it was
22 Two other ideas are also introduced, namely, “essential needs” and “the
lack of tolerable alternatives”. An example given is that exclusion from a
golf club causes annoyance and resentment, but not a deprivation of essential
needs. On the other hand, excluding someone from a job or a hotel room
frustrates an essential need and leaves no tolerable alternative. How much
unfairness is tolerable in the interests of free choice is of course just what
has to be decided. Nevertheless, something might be made of this principle.
McGILL LAW JOURNAL
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worth. In England, at least four draft bills to protect privacy have
been promoted, however.13 They tend to range over a number of
different kinds of invasion of the right to be let alone, and then to
provide, as they have to, broad and sometimes puzzling exceptions
and defences to allow for legitimate inroads into the various pri-
vacies or liberties.
The two general elements that seem to separate out are intrusion
and disclosure.24 Intrusion in its strictest sense covers the invasion
or observation of premises or property by physical, optical or
electronic means. Disclosure ranges over the storing and publication
by writing or other media of facts against the will of those to whom
they relate. It is a pertinent question whether the invasion of esteem,
reputation or comfort by writing or publication ought to be run
together with the first type of intrusion as part of a new elastic-
sided statutory tort.
The collision between wrongful disclosure and the right of
speech and expression produces the need for defences to protect
publication designated as being in the public interest. In this con-
text, as in others, the phrase “public interest” can bear various
senses. It might mean “deservedly published because beneficial to
the general interests of the community” or “published because it
interests the generality of people”. Many things that are published
in underground newspapers or that might be published about the
domestic lives of politicians might be published because of public
interest in the second sense without promoting it much in the first.
The first test imposes a restraint that would, if taken seriously,
penalize a great deal that is now published and televised; but the
second test hardly imposes a restraint at all.
Whether information published even comes within the ambit of
the latter provision will depend in part on whether it relates to
facts or behaviour that are in the public or the private domain and
it is not clear whether the tests for this are a matter of the conduct
being observable, potentially observable, discoverable by people in
general or already recorded in some public record. How is the issue
moreover affected by the public position or status of the persons
23 Bills were introduced in the House of Common (U.K.) on a number
of occasions unsuccessfully, e.g., by Lord Mancroft in 1961, by Mr Lyon
in 1967 and by Mr Walden in 1969. See G.D.S. Taylor, Privacy and the Public
(1971) 34 M.L.R. 288.
24 Peeping Toms may intrude without disclosing and newspapers may dis-
close without intruding.
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THE RIGHT TO PRIVACY: A SCEPTICAL VIEW
concerned? 25 Is there less legitimate public interest, for example, in
the private sunbathing of Mrs Jacqueline Onassis than in the private
swimming of Senator Edward Kennedy? Oddly enough, the American
courts, operating with the law of defamation and the First and
Fourteenth Amendments, seem to be extending remedies for privacy
while widening the category of “public” and non-private persons who
are denied the benefits of it.26
How does privacy in this context fit into the more general picture
in which privacy claims are made and distinctions drawn between
private and non-private activities in the criminal law and civil law
fields? We have seen that the major areas of dispute about privacy
in its various senses can be set out as follows:
P(1) the argument about the limits of the criminal law (freedom
from restraint on “private” self-regarding acts);
P(2) the argument about the right to discriminate (freedom for
“private” dissociation and discrimination); and
P(3) the argument about safeguards against intrusion (freedom
from intrusion on and unwelcome publicity about “private”
affairs).
An illustration of a claim which might involve all three would be an
objection by the members of an exclusive private club for white
homosexuals to a newspaper report disclosing the proceedings at
their annual general meeting.
All three of the above arguments are claims to liberty, but the
claim to exercise “private” or individual liberty under P(1) and
P(2) generally does not involve privacy in the P(3) sense.27 A case
25 Greater public interest in those who aspire to public office or who thrust
themselves into public events is sometimes regarded as something that en-
larges the potential defence of implied consent to publication. Both categories
thrusting.
may perhaps feel
Does the argument not still leave room for distinction between the public
and domestic conduct of a public figure? Or is it supposed to imply that
those holding certain public offices at least are on notice to observe higher
standards in their personal lives on pain of disclosure?
to be more thrust upon than
themselves
20Time Inc. v. Hill 385 U.S. 374 (1967); Curtis Publishing Co. v. Butts and
Associated Press v. Walker 388 U.S. 130 (1967); cf. Harry Kalven Jr, “Anony-
mity, Privacy and Freedom of Association” in The Negro and the First Amend-
ment (1966), 65.
27 Some claims to exercise a right to discriminate under P(2) may be on
privacy grounds, but many will not be. The right to discriminate in the
letting of shared living accommodation or in admission to a club might be
claimed on privacy grounds, but the right to discriminate in the sale of
goods and services, in employment or in insurance would usually be a
“liberty”. claim.
McGILL LAW JOURNAL
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like Griswold v. Connecticut, though about contraceptives and bed-
rooms and explained in terms of privacy, was not really a privacy
claim in this last sense at all, but just a claim to be free from
criminal penalties. There was no worry or complaint about observa-
tion or spying on the activities or disclosure of their taking place.
Similarly, the conflict in the discrimination issue between private
choice and public obligations is, in most cases, a conflict between
the promotion of equality and individual liberty to use property or
dispose of goods or jobs freely. It does not involve privacy in the
P(3) sense except in special cases about the rights of clubs to
discriminate, or those involving householders not wanting to share
domestic services or premises. In such instances, an element of
P(3) and P(2) is mingled.
P(3) privacy separates into two elements: (i) physical intrusion
on the one hand, and (ii) disclosure, exposure and damaging
revelation on the other. The first element is less controversial and a
privacy bill confined to it would not raise as many theoretical
difficulties as one covering both. About physical intrusion and
observation there is a fair amount of moral agreement, apart from
some unsettled questions about the circumstances in which govern-
ments should be allowed to make use of certain methods. With the
communication and disclosure side, very difficult balancing ques-
tions arise.
There cannot be a single answer to the question, “Is there a right
to publish true but unwelcome or damaging information about other
people?”. Anybody asked to answer this question in a particular
case would want to know and weigh four considerations (assuming
the information to be true):
(a) Was the information acquired properly or innocently, or by
wrongful means?
(b) Was there any consent to disclosure or could any be implied?
(c) Was the activity described or exposed itself innocent or dis-
reputable? 28
(d) Was there any actual damage caused, or just annoyance?
Disagreements about the answer in a particular case will arise
because of variations in the answers to these particular questions.
If the activity is criminal, for example, disclosure without consent
would obviously be thought legitimate. If acquisition of the informa-
tion is wrongful and the activity exposed innocent, then its publi-
cation would not be legitimate even if the actual damage element is
2 8 0r, although innocent, generally treated as disreputable.
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THE RIGHT TO PRIVACY: A SCEPTICAL VIEW
not large. There can obviously be a great many permutations of
these factors. The trickiest cases will be combinations of innocence
under (a) and non-innocence under (c). There will in all four cate-
gories be disputes over the criteria for counting something as
“innocent” or as “consent” or as “damaging”. That is why there
might be some disagreement about the answer to the question,
“Ought I to be able to disclose to somebody else my knowledge,
innocently acquired, that my next door neighbour has an immoral
liaison?”. Still, one can see that our feelings about the various
privacy cases reported vary because they represent a different balan-
ce of these four factors.
Compare the innocent family in Time Inc. v. Hil2 9 exposed to
unwelcome publicity after being the protagonists in a crime of
violence, with the policeman mentioned in the Younger report whose
ex-mistress exposes his old love affair,30 or the cases in which the
revelation, though certainly without consent, seems to be of matters
which an objective bystander would not regard as being as de-
trimental as does the party affected. Under (a) questions of motive
also might well enter into a moral assessment:
Is the exposer
working off a grudge or is he a newspaper reporter doing his job?
If we count (+) and (-)
as affirmative or negative answers
to the four questions about the presence of innocent acquisition,
existence of express or implied consent, innocence of the conduct
exposed and presence of real damage, then the strongest combin-
ation for non-publication would be a-b-c-d.
On the other hand,
a combination of a+ with d-,
especially if conjoined with c- or
b?+ (where b? = implicit consent), would strongly suggest that
the right to privacy should not in that instance prevail.
There seem two points worth making about this computation in
the light of the argument about the need for privacy legislation.
Quite apart from the intrinsic difficulty in assessing multiple
considerations, consistency in the balancing process requires some
agreement as to the onus of proof regarding publication vs. con-
fidentiality. Someone starting with the presumption of the freedom
to speak or communicate the truth unless an overwhelming case
could be made for suppression of this right, might well reach a
different result from someone who begins with the assumption of a
29 Supra, f.n. 26.
3 0 Supra, f.n.4. The answer to the question, “Was the information published
innocently acquired?” may be complicated by the fact that the exposer and
exposee are in some sense joint malefactors. The information might never-
theless be rightfully acquired as distinct from stolen or obtained by trick or
deception.
McGILL LAW JOURNAL
[Vol. 21
proprietary right to keep information about oneself confidential
unless an overriding case can be made out that the public interest
requires publication. It is partly because there is no real consensus
about the competing rights of free speech and privacy that legisla-
tion in this area (P3(ii)) is controversial.
A second point is that there is some difference between deciding
which way the balance should come down in a case resulting in
moral condemnation as opposed to one in which the consequence
is a legal penalty. One might, for example, feel in the case of the
policeman’s spiteful ex-mistress who publicizes a former liaison,
that on balance she was not morally entitled
to disclose the
information, yet not think there should be a legal remedy against
her. In considering the case for a general legally enforceable right
to privacy, it appears that a further balancing process must take
place. The existence of some cases in which the damage element
excites sympathy will have to be weighed against the increased
opportunity that such legislation would provide for legal suppression
of information by individuals, organizations and officials whose
dislike of publicity is less well founded.
Conclusion
The terms “private” and “privacy” have no succinct or precise
legal definition that is universally accepted. The ambiguity which
surrounds the notion of “privacy” confuses any discussion concern-
ing the “right of privacy”. Legislation purporting to protect an
individual’s right of privacy would be subject to widely varying
interpretation. To be meaningful and effective, reference to a general
right of privacy must be avoided: specific rights of privacy must be
enumerated and defined.3 1
31The creation of a specific tort of breach of confidence has now been
recommended in a report by the Law Commissioners. It is suggested that
actions would lie where disclosure of information would cause direct financial
damage; would deprive a person to whom the duty of confidence existed from
benefitting financially by the use of the information; or would cause distress.
Defences of publication on lawful authority, privilege and public interest are
proposed (Law Commission Working Paper 58. Breach of Confidence (1974)).
