Edited by András Koltay and Paul Wragg
Chapter 2: The origins and development of the right to privacy
In essence, the protection of privacy ought everywhere to be a simple, legal concept with clear and obvious remedies. But conspicuous variations between different jurisdictions show that it is not: in the United States, its ambit (at least in William Prosser’s formulation) is far wider than in the English common law and European civil law; the balance is struck differently between privacy and its great competing right – free speech – in most jurisdictions; the ‘reasonable expectation of privacy’ test remains controversial where it is found; and courts almost everywhere have struggled to settle on the most appropriate relief. Many of these differences stem from a failure to adequately appreciate that privacy protects a personality right, and therefore ultimately human dignity, rendering analogies such as that with the equitable wrong of breach of confidence false and inappropriate. The burgeoning body of law recognising dignity as the foundational human right also restrains any fetishization of competing rights such as free speech. The taxonomy of the Roman Law actio iniuriarum and its descendants in European civil law and Roman-Dutch law, which have always protected aspects of dignity including privacy, will be used to illustrate the argument.
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