Privacy: A Review and Critique of the Literature 553

Privacy: A Review and Critique of the Literature

Richard B. Bruyer"

// seems trite to say privacy is valuable. Vie Supreme II semble oisettx de dire que le respect de la vie privee
Court of Canada has emphasized that privacy is est precieux. Le Cour supreme du Canada afail valoir
worthy of constitutional protection. Scholars tend to que le respect de la vie privee merite la protection de
agree that privacy is a fundamental moral and la Constitution. Les e'rudits semblcnt d'accordquece

political concept. The consensus appears to end. respect est tin concept moral etpolitiquefondamental.
however, when privacy in theory approaches privacy II n'y a cependant plus de consensus lorsqtte I'on
in practice. As a broad and evanescent concept, passe de la theorie a la pratique. C'esl tin concept
opinions differ as to what interests or values the vaste et evanescent, el les opinions different sur
protection of privacy is designed to achieve. The I "tnteret ou la valeur que la protection de la vie privee
prevailing conceptions ofprivacy — six ofwhich have devrait apporlcr. Les idees dominantes sur le respect
been identified —fall prey to substantive criticisms de la vie privee. dont les sixgrandes ont ele identifies,
from which, the author contends, they cannot recover. deviennenl la proie de critiques dont. comme le fait
First, they sufferfrom inlttitionism. That is. they offer remarquer I'auteur. elles ne peuvent pas se relever.
an intuitive approach ofwhat makes things "private " Tout d'abord. elles souffrent d'intuitionnisme, c'esl-a-

and incorrectly assume that we all approach privacy dire qu'elles proposent une demarche intuitive a
with a common understanding of the concept, or I 'egard de ce qui est « prive » et suppose, i) tort, que
concepts, that the term "privacy" expresses. Further, nous avons tons la meme comprehension du concept de
the standing conceptions ofprivacy depend upon and « respect de la vie privee ». De plus, les idees
serve the concept ofprivacy as liberty which itself is habituelles sur ce respect dependent du concept de
flawed. "Liberty" is seen as a form of licence, tiberte qui esl. lui aussi, sans fondement. « Liberte »
protecting — in Us most crudeform—an individual's semble elre consideree comme une forme de licence,
right to do as he or she pleases. So viewed, it is not protegeant dans sa forme la plus e'lementaire le droit
particularly surprising to see privacy attacked when d'une personne defaire a son gre. II n 'est done pas
competing "liberty" issues are at stake. Given the particulieremenl surprenant que le respect de la vie
substantial criticisms with the prevailing conceptions privee soil altaque si on le compare aux questions de
of privacy, it may be worthwhile to reconsider the « liberte » qui sonl enjeu. Compte tenu des critiques
present paradigm against which privacy is conceived. a I 'egard des idees dominantes relatives au respect de
It may be that privacy is heller conceived of as an la vie privee. it petit elre mile d'examiner de nouveau
equality issue, not a liberty issue. The focus should le present paradigme par rapport aiiquel le respect de
shift away from conceptualizing privacy as a la vie privee a ele concu. llsepeul aussi que eel aspect

prerequisiteforpreventing invasions ofvarious liberty convienne mieux a la question d 'egalite que de liberte.
interests to one of "maintaining conditions " that will llfaudrait eviler de conceptualiser le respect de la vie
privee en lant queprealable pour prevenir les alteintes
make the exercise ofthose liberty interests possible. By
limiting the ambit of privacy, we may indeed aux diverses libenes et s 'en tenir au « maintien des
conditions » qui permeltront I 'exercice de ces libertes.
strengthen it.
En limitant laporlt'edti respect de la vie privee. nous
pourrons peut-etre la renforcer.

Table of Contents

I. Introduction ■"*■
II. Current Conceptions of Privacy 558
A. The Right to be Let Alone 558
B. The Limited Access to the Self (Autonomy) 561

B Comm LL B.. LL.M.. called to the Alberta Bar in 1992. now a contract lawyer with dc Villars Jones,
Edmonton The author would like to thank Professor Ted DeCoste, who superv ised his LL.M. thesis
(from which this paper draws extensively) and whose insight and patience undoubtedly .mproved the
quality of the work.
 554 Alberta Law Review (2006)43:3

C. Secrecy/Concealment of Discreditable
Information 562
D. Control over Personal Information 564
E. Creation of Self/Personhood and the
Preservation of One's Dignity 566
F. Promotion of Intimacy and Relationships 568
III. A Critique of the Current Conceptions 569
A. Summary of Standing Criticisms 569
B. Analysis of Standing Criticisms 569
IV. Alternatives for Privacy 574
A. Combine Current Conceptions 575
B. A Pragmatic Approach to Conceptualizing
Privacy 580
V. Conclusion 586

Privacy is a value so complex, so entangled in competing and contradictory dimensions,

so engorged with various and distinct meanings, that I sometimes despair whether it can
be usefully addressed at all.1

1. Introduction

It seems trite to say privacy is valuable. The Supreme Court of Canada has emphasized,
on numerous occasions, that "(t]he protection of privacy is a fundamental value in modem,
democratic states,"2 worthy of constitutional protection for that reason alone, but having
"profound significance for the public order" as well.3 Privacy has emerged as a fundamental
value, not only for Canadian society but for human society as well, having found protection
as the right against arbitrary interference with privacy in art. 12 ofthe Universal Declaration
ofHuman Rights* and art. 17 of the International Covenant on Civil and Political Rights.s

The consensus appears to end, however, when privacy in theory approaches privacy in
practice. As a "broad and somewhat evanescent concept,"6 opinions differ as to what
interests or values the protection of privacy is designed to achieve. Numerous examples
abound. Two of Canada's privacy "experts," saddled with the responsibility of ensuring
informational privacy — the Alberta privacy commissioner and the federal privacy
commissioner — reached opposite conclusions in similar scenarios concerning whether
prescriber information disclosed by pharmacists to a data collection company violates the

Robert C. Post, "Three Concepts of Privacy" (2001) 89 Geo. L.J. 2087 at 2087.
Dagg v. Canada (Minister ofFinance), [1997] 2 S.C.R. 403 at para. 65 [Daggi
R. v. Dymeni, [ 1988J 2 S.C.R. 417 at 427 [Dyment).
GA Res. 217(111). UN GOAR. 3d Scss..Supp. No. 13. UN Doc. A/X10(1948), art 12: "No one shall be
subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon
his honour and reputation. Everyone has the right to the protection of the law against such interference
or attacks."
19 December 1966, 999 U.N.T.S. 171. Can. T.A. 1976 No. 47, 6 I.L.M. 368 (entered into force 23
March 1976). See John D.R. Craig, "Invasion of Privacy and Charter Values: The Common-Law Tort
Awakens" (1997) 42 McGill L.J. 355.
Dagg, supra note 2 at para. 67, in relation to defining the privacy interests protected by the Privacy Act,
 Privacy: A Review and Critique ok ti ie Literature 555

prescribing physician's right to privacy.7 Two decisions by the Supreme Court of Canada
appear to be inconsistent on whether disclosures of information pursuant to access to
information requests violate individual privacy in particular cases.8 In the context of
employee surveillance, two arbitrators reached different conclusions in cases involving the
admissibility of surreptitious surveillance, both citing an employee's reasonable expectation
of privacy, or lack thereof, in similar scenarios, as the basis for their decisions." In the
context ofthe criminal law, there are numerous examples spanning di ITerent jurisdictions and
court levels where the judiciary rules a search and seizure violates s. 8 of the Charter™ in one
scenario but docs not in conceptually similarcircumstances. For example, the Supreme Court
held, in one case, that an accused does not have a reasonable expectation of privacy in his
personal electric consumption records in his home," but, in another, ruled that the accused
does have a reasonable expectation of privacy in his financial information at his bank.12 The
Supreme Court of the United States, by contrast, came to the opposite conclusion as regards
financial records in an earlier case in that country.13

It is not only privacy jurisprudence, as reflected in different results in these decisions, that
appears to be inconsistent. Scholarly literature on privacy is rife with inconsistency on this
score as well and must be held to have contributed to the piecemeal, patchwork approach to
privacy by the judiciary. When speaking of privacy, scholars at one end of the spectrum
contend that privacy promotes or protects relationships,14 one's personhood and the creation

Alberta: Order H2O02-003 belween IMS Health Canada ami Athena Pharmacists amlPluirmacies. An
application lor judicial review was commenced in the Alberta Court ofQueen's Bench and appealed to
the Alberta Court of Appeal (IMS Health Canada Ltd. v. Alberta (Information and Privacy
Commissioner) (2005), 371 A.R. 62, 2005 ABCA 325. Federal: PIPEDA Case Summary #15 (Letter
from Privacy Commissioner, 2 October 2001), online: Office of the Privacy Commissioner of Canada
<www.privcom.gc.ca/media/an/wn 01 IOO2_e.asp>. Likewise, an application for judicial review was
brought in the Federal Court and was appealed to the Federal Court of Appeal (Maheu v. IMS Health
Canada (2003). 314 N.R. 393,2003 FCA 462).
Disclosure of personal employment information of RCMP members to aid in litigation was ordered in
Canada (Information Commissioner) v. Canada (Commissioner of the Royal Canadian Mounted
Police), |2OO3] I S.C.R. 66, 2003 SCC 8 [Information Commissioner v. RCMP); disclosure of the
expensesofa particular member ofQuebec's National Assembly was refused without the consent ofthe
member in Macdonell v. Quebec (Commission d'acces a I'information). |2()02) 3 S.C.R. 661,2002 SCC
71.
Surveillance evidence excluded in Re Doman Forest Products Ltd. and I. H'.A. l.oc. I-S57 (1990), 13
L.A.C. (4th) 275, Vickers; surveillance evidence admitted in Re Toronto Transit Commission andA. T. U.
Loc. Hi (Fallon) (1999), 79 L.A.C. (4lh) 85, Solomatenko.
Canadian Charter ofRights and Freedoms, Part I of the Constitution Act. 1982. being Schedule B to
the Canada Act 1982 (U.K.), 1982. c. 11 [Charter].
R. v. Plant, [1993] 3 S.C.R. 281 at 293 [Plant], where Sopinka J. held thai s. 8 of the Charier only
protects "a biographical core ofpersonal information" and that "[l|hc computer records invesligated in
the case at bar while revealing the pattern ofelectricity consumption in the residence cannot reasonably
be said to reveal intimate details of the appellant's life since electricity consumption reveals very little
about the personal lifestyle or private decisions of the occupant of the residence."
Schreiber v. Canada (Attorney General), 11998| I S.C.R. 841 [Schreiher], where although the Court
split on the applicability of the Charter for different reasons (i.e. the request for information was in a
foreign financial institution (Swiss)), all agreed that financial information docs fall with the "biological
core ofpersonal information" (Plant, ibid, at 293) that ought to be protected.
United States v. Miller, 425 U.S. 435 (1976).
James Rachels. "Why Privacy is Important" (1975) 4 Philosophy and Public Affairs 323.
556 Alberta Law Review (2006) 43:3

of self," one's dignity,16 and even democracy" and the rejection of totalitarianism.18 At the
other end ofthe spectrum, scholars dismiss privacy as simply protecting property interests,"
as promulgating subordination of, and violence to, women by men,20 or as promoting, or at
least rewarding, fraud and deceit.21 In Canada, some ofthe debate is still stubbornly focused
on whether we have, indeed, a right to privacy at all in situations not involving the criminal
law.22 As a result, some commentators have concluded that if privacy is not dead, it "is
probably best described as alive, but on life support."23

The purpose of this article is to review and critique the existing conceptions of privacy.
In Part II, I summarize both the prevailing conceptions ofprivacy and the criticisms that have
been levelled against each. The current conceptions — six of which have generally been

Jeffrey H. Reiman, "Privacy, Intimacy, and Personhood" (1976) 6 Philosophy and Public Affairs 26.
Richard D. Parker, "A Definition of Privacy" (1974) 27 Rutgers L. Rev. 275.
Jeffrey H. Reiman, "Driving lo 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 [Reiman, "Driving to the Panopticon"].
Jed Rubenfeld, "The Right to Privacy" (1989) 102 Harv. L. Rev. 737.
Richard S. Murphy, "Properly Rights in Personal Information: An Economic Defense ofPrivacy" (1996)
84Gco.LJ.2381.
Elizabeth M. Schneider, "The Violence of Privacy" (1991) 23 Conn. L. Rev. 973. See also Rcva B.
Siegel, "'The Rule of Love': Wife Beating as Prerogative and Privacy" (1996) 105 Yale L.J. 2117,
where she states that a husband's right to punish his wife — known as chastisement — was permitted
so that courts would not have to interfere with "marital privacy."
Richard A. Posner, "John A. Siblcy Lecture: The Right to Privacy" (1978) 12 Ga. L. Rev. 393. See
Murphy,.v«/w«nolc 19; W.A. Parent, "Privacy, Morality, and the Law"( 1983) 12 Philosophy and Public
Affairs 269 at 277. where he states that, in Posner's view, the motivation of individual privacy was
simply to "hide discreditable facts about themselves from future employers who are entitled to this
information."
Craig, supra note 4. This is a point that I consider moot for several reasons. First, most jurisdictions in
Canada have, in some fashion, legislated a privacy right. In such cases, the question is whether the facts
establish that die statutory tort is engaged. See e.g. s. 60 of the Personal Information Protection Act,
S.A. 2003, c. P-6.5. Second, our courts arc reluctant to strike out novel claims. For example, in Cooper
v. Hobart, [2001 ] 3 S.C.R. 537,2001 SCC 79 and its companion case of Edwards v. Law Society of
Upper Canada, [2001J 3 S.C.R. 562, 2001 SCC 80, die Supreme Court of Canada reviewed the
proximity or neighbourhood principle established in Donoghue (or McAlister) v. Stevenson, [1932] All
E.R. Rep. I (H.L.) and in Anns v. Merton London Borough Council, [1977] All E.R. 492 (H.L.), and
emphasized at paras. 23 and 25 that although there are various categories in which proximity has
historically been recognized, those categories are not closed, thus evidencingjudicial reluctance to strike
out novel claims, which presumably will include privacy claims. Third, privacy considerations are
sprinkled throughout our CAor/erjurisprudence. As the common law is to be informed by our Charter
values (see Dickason v. University ofAlberta, [1992] 2 S.C.R. 1103 and Vriendv. Alberta, [1998] 1
S.C.R. 493), it is reasonable to conclude that our notions of privacy — as articulated in our Charter
jurisprudence — will find a voice in the common law where needed.
Murphy, supra note 19 at 2388. See Irwin R. Kramer, 'The Birth of Privacy Law: A Century Since
Warren and Brandeis" (1990) 39 Cath. Univ. L. Rev. 703, where he observes at 723 that cases have
overwhelmingly favoured the press and claims of privilege and qualified privilege as to "virtually
swallow the tort" (quoting Harry Kalven, Jr., "Privacy in Tort Law — Were Warren and Brandeis
Wrong?" (1966) 31 Law & Conlcmp. Probs. 326 at 336). Kramer continues on the same page:
After examining what she believes arc insurmountable constitutional problems, Professor
Zimmerman could not reconcile Warren and Brandeis1 views with existing first amendment rights
and urged courts to abandon the tort of invasion of privacy: "[A]lter nearly a century of
experience,... it is probably lime to admit defeat, give up the efforts at resuscitation, and lay the
noble experiment in the instant creation of common law to a well-deserved rest" (citing Diane L.
Zimmerman, "Requiem for a Heavyweight: A Farewell to Warren and Brandcis's Privacy Tort"
(1983) 68 Cornell L. Rev. 291 at 365).
 Privacy: A Review and Critique or the Literature 557

advocated — all have some intuitive appeal. Each can be used to rationalize some, but not
all, of the myriad of ways that privacy comes under scrutiny in modern life.

In Part III, in addition to the criticisms levelled against each conception by proponents of
other conceptions, 1 advance two additional criticisms, applicable to all, which I contend
ultimately explain their inadequacy. First, the conceptions all suffer from intuilionism as
regards what makes things private. They approach the question by asking us all to imagine
horrible or nightmarish invasions ofprivacy. Ifwe do not all share what is intuitively horrible
or nightmarish, then the conception must falter. Second, the current conceptions are
invariably based on a misconception of liberty as a form oflicence where individuals are free
to do as they please according to their own lights. As such, privacy finds itself in constant
tension with other liberties. This is a conflict which, at least in the U.S., privacy usually
loses.

In Part IV, accepting as I do the argument that the current conceptions of privacy do not
adequately explain privacy in daily life, 1 explore two alternatives that have been advanced
for privacy. First, one could remain within the existing paradigm but evaluate privacy cases
against the conceptions working together, not in isolation. Some scholars have done precisely
this and, indeed, such an approach appears to be evident in the Canadian judiciary. This
approach leaves unanswered, unfortunately, the question of whether there is, indeed, a core
value of privacy that all of the standing conceptions attempt to answer.

Another approach has been to abandon the search for a core value and instead approach
privacy on a case-by-case basis. That is, one could accept that privacy has no inherent value
of its own and merely serves other objectives. Such an approach, however, seems
inconsistent with most jurisprudence, which recognizes privacy as a fundamental right
worthy of constitutional protection in its own right.

In the conclusion, I summarize the state of privacy thus far and suggest, as another
alternative for privacy, that it may be appropriate to change the existing paradigm against
which privacy is evaluated. A new paradigm would approach privacy as an equality issue,
not a liberty issue. There is, 1 conclude, no merit in continuing to debate what liberties —
"action verbs" — privacy should protect unless we can first be satisfied that individuals have
meaningful equality.24 Keeping things private does not, then, facilitate our liberty but rather
it ensures our equality.

One might wonder whether anything is to be served by revisiting how privacy should be
conceptualized. Ronald Dworkin, for example, notes that these sorts of exercises are of
fundamental importance:

These are nol puzzles for the cupboard, to be taken down on rainy days for fun. They are sources of
continuing embarrassment, and they nag at our attention.... Suppose a "novel righl-of-privacy" case comes
to court, and there is no statute or precedent claimed by the plaintiff. What role in the court's decision should
be played by the fact that most people in the community think that private individuals are "morally" entitled

I have attempted to articulate the argument for privacy as an equality right in my LL.M. thesis.
 558 Alberta Law Review (2006) 43:3

to that particular privacy?... Conceptual puzzles about "the law" and "legal obligation" become acute when
a court is confronted with a problem like this.25

It is to this task that 1 now turn.

II. Current Conceptions of Privacy

It is generally accepted that there are six conceptions of privacy that are currently
championed. Privacy is seen as: (I) the right to be let alone; (2) the limited access to the self
(autonomy); (3) secrecy and the concealment of discreditable information; (4) control over
personal information; (5) creation ofself/personhood and preservation of one's dignity; and
(6) promoting intimacy and relationships.26 Many ofthe conceptions overlap with each other
and, as will be developed below, some scholars have abandoned a search for a single
conception in favour of a combination ofseveral that, in their view, explains privacy. Each
will be considered in turn along with some criticisms specific to each conception. General
criticisms — those that apply to them all — will be considered in the next section.

A. The Right to be Let Alone

This conceptualization of privacy dates back to 1890, when two young lawyers penned
a famous plea to have recognized a right to privacy at common law.27 Although no one is
quite sure what moved Samuel D. Warren and Louis D. Brandeis to write,28 one can be sure
that part of their motivation was to ensure that privacy was seen as a free-standing right
worthy of protection in its own right and not derivative of some other more recognizable
cause of action that required judges, then and in the future, to resort to legal fictions if
predisposed to protect privacy.29 Warren and Brandeis simply argued, as a rights-based
theorist would,30 that precedential cases, though not specifically referring to privacy,

^ Ronald Dworkin, Taking Rights Seriously (Cambridge, Mass.: Harvard University Press, 1977) at 14-15
Darnel J. Solove, "Conceptualizing Privacy" (2002) 90 Cal. L. Rev. 1087.1 do not take great exception
with Solove's characterizations of the prevailing conceptions since they appear to be supported by the
literature on this subject. I say that with a number of qualifications, however. First and most
importantly, the characterizations do not affect my thesis one way or another. They arc all based in my
view, on the commonly held — but erroneous—concept ofprivaey as a liberty (as opposed tocquality)
interest. This forms the basis ofmy contention that all ofthe conceptions have proven unworkable even
though, when considered separately, they each possess some intuitive appeal. Second, the theories do
not fit neatly into any one category and I doubt whether the authors would necessarily agree with
Solove's assignment ofthem subscribing to one conception as opposed to another.For example Charles
Fried defines privacy as "control over knowledge about oneself ("Privacy" (1968) 77 Yale LJ 475 at
483). By the same token, however. Fried contends at 484 that "privacy is the necessary context for
relationships wh.ch we would hardly be human if we had to do without - the relationships of love
tnendship and trust." Is this a conception ofprivacy as control over information or promoting intimacy

otherconcrtiOTJ ^ '* S'mP'y °"C CXamP'e ^^ ^"^ "^Ian8uage lhat sccms l0 0VcrlaP w"h
Samuel D. Warren & Louis D. Brandeis, "The Right to Privacy" (1890) 4 I larv L Rev 193
Sec, for example. Kramer, .supra note 23 at 709 where legend, subsequently discredited, was that
Warren, hirnse I and his family being part of Boston's social elite, became infuriated with the press
having a held day on his daughter's wedding and so penned the Law Review article
Implied contract or breach of confidence where the "invasion" is between strangers, for example
Rights-based in the sense that one accepts that rights are inherent to the individual and are not dependent
upon some external force: "|T|hey are not the product ofany legislation, or convention, or hypothetical
contract they are not "[gifts from) God, or an ancient ritual, or a national sport" (Dworkin supra note
 Privacy: A Review and Critique of the Literature 559

nevertheless contained "privacy principles"31 that could be applied independent of any

property or other recognizable cause of action.32 The right to privacy envisioned by the
article is prefaced on a distinct right to liberty — the right to be let alone.33

Warren and Brandeis argued that privacy is a right not dependent on "the interposition of
the legislature,"34 and concluded that privacy is based on a notion of one's personality or of
an "inviolate personality":

These considerations lead lo the conclusion that the prelection afforded to thoughts, sentiments, and
emotions, expressed through the medium of writing or of the arts, so far as it consists in preventing
publication, is merely an instance of the enforcement of the more general right of the individual to be let
alone. It is like the right not to be assaulted or beaten, the right not to be imprisoned, the right not to be
maliciously prosecuted, the right not to be defamed. In each of these rights, as indeed in all other rights
recognized by the law, there inheres the quality of being owned or possessed — and (as that is the
distinguishing attribute ofproperty) there may be some propriety in speaking oflhose rights as property. But,
obviously, they bear little resemblance to what is ordinarily comprehended under that term. The principle
which protects personal writings and all other personal productions, not against theft and physical
appropriation, but against publication in any form, is in reality not the principle of private property, but that
of an inviolate personality.

Although this view has attracted significant scholarly interest throughout the twentieth
century,36 it suffers from numerous difficulties. First, the underlying principle of privacy it
promotes — that of "inviolate personality" — is not defined:

The formulation ofprivacy as the right to be let alone merely describes an attribute ofprivacy. Understanding
privacy as being let alone fails to provide much guidance about how privacy should be valued vis-a-vis other
interests, such as free speech, effective law enforcement, and other important values. Being let alone docs

25 at 176, 198).
Dworkin,
workin, i&k/. at 119: r -
Brandeis and Warren's famous argument about the right to privacy is a dramatic illustration [of
the point that precedent can be used lo have a new principle striking out on a different line]: they
argued that this right was not unknown lo the law but was, on the contrary, demonstrated by a wide
variety ofdecisions, in spite ofthe fact that the judges who decided these cases mentioned no such

Wawn & BOranOdeis?Sra note 27 at 213: "The principle which protects personal writings and any other
productions ofthe intellect or of the emotions, is the right to privacy, and the law has no new principle
lo formulate when it extends this protection to the personal appearance, sayings, acts, and to personal
relation domestic or otherwise." .
Note, however, that Warren & Brandeis (ibid) did no. take credit forthis phrase ^««tcg »
note 4 at 195, Judge Cooley from T. Coolcy. A Treatise on the Law of Tons, 2d ed. (1888) at 29. Even
more interesting is that Cooley himselfused this term lo encompass the individual snght lobe tree from
physical attack, not any inchoate, inarticulate right like privacy — sec Kramer, supra nole .3.
Warren & Brandeis, supra note 27 at 195.

Sa"rd2CSTurkinBton, "Legacy or Ihc Warren and Brandeis Article: The Emerging Unencumbered
C^s«
"ITIhe article has acquired legendary status in the realm oflegal scholarship. It is likely that The R.ght
,o Privacy has had as much impact on the development of law as any single publication in ega
£riodicaU, It is certainly one ofthe most commented upon and cited articles in the h.story ofour legal
system." Sec also Kramer, supra note 23.
 560 Alberta Law Review (2006) 43:3

not inform us about the matters in which we should be let alone. Warren and Brandeisdid speak of"inviolate
personality", which could be viewed as describing the content ofthe private sphere, but this phrase is vague,
and the authors failed to elaborate.''7

Second, the conception of privacy as the "right to be let alone" has, generally, been applied
in situations involving state interference. It forms the basis in both Canada and the U.S. for
many search and seizure cases in the criminal law context. It has also been used to justify a
woman's right to an abortion1" or an unmarried couple's right to contraceptives39 in the U.S.

This conception is clearly inadequate where state interference is not the action complained
of.40 It is much too narrow, since it ignores the role — more prevalent today than in the past
— that private actors play in the realm of privacy. In many situations that we now find
ourselves faced with — particularly as a result of technological advancements in the
collection, use and dissemination of personal information — it is becoming increasingly
common for individuals to demand more, not less, state intervention on their behalf.41

It is simultaneously too broad, as any form of invasion by the state would be prohibited
under this conception. At its core is a concern that the individual not be denied liberty.42
Clearly, however, the state's obligations to ensure basic security and certain property rights
for its citizens outweighs any unfettered right of individuals to do as they please. For these
reasons, other conceptions of privacy have been advanced.

" Solove, supra note 26 at 1101 -102.

" Roe v. Wade, 410 U.S. 113 (1973).
Grmx-oldv. Connecticut, 381 U.S. 479 (1965) {Grisnold] (which held as unconstitutional a statute
criminalizing contraceptives for married couples). In Eisetvsladt. Sheriffv. Baird 405 U S 438 (1972)
[Etsemtadt], Griswold was extended to the use of contraceptives by unmarried couples. '
Lois Shepherd, "Looking Forward with the Right of Privacy" (2000) 49 U. Kan. L. Rev 251 at 264-
As early as Griswold it was apparent that privacy in the sense of a zone of behaviour not for
public view did not completely describe the protections the Court wished to recognize for
individuals against the state. While there was certainly an appeal to such a sense of privacy by
reference to the marital bedroom and analogy to the Fourth Amendment's prohibition against
unwarranted search and seizure, it would soon break down when we left the home, for example
to buy contraceptives [emphasis in original, footnotes omitted]. '
Which likelyexplains theexplosion in information privacy statutes across alljurisdictions. Posncr would
omittcdTr SimHar' Vi6W °fthC ri8t" '° bC 'Ct a'°ne iS"pra n°tC 2I "' 40° lr«*>««
It is no answer that such individuals have the "right to be let alone." Very few people want to be
et a one. They want to manipulate the world around them by selective disclosure of facts about
themselves Why should others be asked to take their self-serving claims at face value and be
prevented from obtaining the information necessary to verify or disprove these claims'
As will be developed below, however, how this conception has been applied is by viewing liberty as a
lorm of licence. This alone condemns this conception to fail as inevitably liberties as licence will be in
constant tension with each other. "»■■«.■■■.* »m rein
 Privacy: A Review and Critique of the Literature

B. The Limited Access to the Self (Autonomy)

This conception of privacy requires "a zone of relative insulation from outside scrutiny
and interference — a field ofoperation within which to engage in the conscious construction
of self."43 Under this conception, we desire privacy

out ofa sincere conviction that there are certain facts about us which other people, particularly strangers and
casual acquaintances, arc not entitled to know ... hut instead [wel ane to be respected as autonomous,
independent beings with unique aims to fulfill."

This conception emphasizes that privacy gives individuals "the opportunity to experiment
with self-definition in private, and (if one desires) to keep distinct social, commercial, and
political associations separate from one another."45

Ruth Gavison would be considered a proponent ofthis conception.46 In her view, there are
three elements present in every legitimate privacy claim: secrecy, "the extent to which an
individual is known; [anonymity], the extent to which an individual is the subject of
attention; [and solitude], the extent to which others have physical access to an individual."47
An intrusion must violate all three, simultaneously, to merit being labelled an invasion of
privacy.48

This conception, like the right to be let alone, suffers from being overly broad. Surely not
all information about ourselves, however innocuous and whatever its source, is truly
"private." Access to us occurs, in some form, many times a day without our knowledge. We
are frequently overheard or seen saying or doing things in our daily lives without ever feeling

that our privacy has somehow been invaded. One would surmise that only access to specific
dimensions of ourselves or to particular matters or information would be worthy enough to
attract privacy.41>

Further, this conception links, again, privacy to liberty. This is exemplified by Lois
Shepherd who, when adopting a similar conception of privacy as autonomy, states:

Julie E. Cohen, "Examined Lives: Informational Privacy and the Subject As Object" (2000) 52 Stan. L.
Rev. 1373 at 1424.
Parent, supra note 21 at 276-77. .
Cohcn.s«pranoic41 at l426-27.ciled in William M.Treanor&Paul M.Schwartz. "The New Pnvacy
(2003) 101 Mich. L. Rev. 2163 at 2179. .
Ruth Gavison. "Privacy and the Limits of Law" (1980) 89 Yale L.J. 421 at 423. Privacy ,s related to
our concern over our accessibility to others: the extent to which we arc known to others, the extent to
which others have physical access to us. and the extent to which we are the subject ofothers1 attention.
Ibid, at n. 40. . .
Ibid Accordingly, for example, the following could not properly invoke privacy, even though pnvacy
is invariably asserted in all such claims: exposure to unpleasant noise, smells and sights, since solitude-
is missing- prohibitions ofsuch conduct such as abortions, use ofcontraceptives and "unnatural sexual
intercourse; insulting, harassing or persecuting behaviour; presenting individuals in a "lalse light;
unsolicited mail and unwanted phone calls; regulation of the way familial obligations should be
discharged; and commercial exploitation.
Solovc. supra note 26.
 562 Alberta Law Review (2006) 43:3

Under my analysis, at lite heart of liberty is the opportunity to find meaning in our lives. This is why we
value liberty. This thesis looks to what effect certain denials of liberty, such as the liberty to choose one's
spouse or romantic partner, or the liberty to have or not to have children, have on the meaning people find
in their lives.50

Here, too, does this conception suffer from being too broad. It is naive to assume that
individuals share universal beliefs about which liberties are valuable, and therefore which
matters are "private." The conception's coherence thus breaks down at this point. The
conception carries the same albatross that other conceptions based on liberty as a form of
licence do. Individual liberties may, and often do, conflict. This conception offers no
guidance for balancing competing liberty interests, and therefore, which privacy interests are
more important than others.

In addition, the requirement ofsolitude is also too narrow. It is somewhat ofan oxymoron
to be concerned about privacy for someone alone who has absolute solitude. Something more
must be involved.

C. Secrecy/Concealment of Discreditable Information

The leading proponent of this conception of privacy is an American judge, Richard

Posner, who views privacy as an individual's "right to conceal material facts about
themselves."51 Posner views privacy as a form of self-interested economic behaviour,
concealing true but harmful facts about oneself for one's own gain:

Much orthe demand forprivacy. however, concerns discreditable information, often information concerning
past or present criminal activity or moral conduct at variance with a person's professed moral standards. And
orten the motive for concealment is ... to mislead those with whom he transacts. Other private information
that people wish to conceal, while not strictly discreditable, would irrevealcd correct misapprehensions that
the individual is trying to exploit, as when a worker conceals a serious health problem from his employer or
a prospective husband conceals his sterility from his fiancee.52

Under this economic conception of privacy, it is simply inefficient that law should allow
privacy to allow anything less than full disclosure:

An analogy to the world ofcommerce may help to explain why people should not—on economic grounds,
in any event — have a right to conceal material facts about themselves. We think it wrong (and inefficient)
that the law should permit a seller in hawking his wares to make false or incomplete representations as to
their quality. But people "sell" themselves as well as their goods. They profess high standards ofbehaviour
in order to induce others to engage in social or business dealings with them from which they derive an
advantage but at the same time they conceal some of the facts that these acquaintances would find useful in
forming an accurate picture of their character.53

Shepherd, supra note 40 at 254.

Posner, supra note 21 at 399.
Ibid
Ibid
 Privacy: A Review and Critique of the Literature 563

Quite clearly this is a very restrictive — and cynical — conception of privacy. Under this
conception, individual privacy would be eliminated for the sake of societal efficiency. Ifone
agrees with this conception, then one must also reject privacy as a concept, that it has any
intrinsic value as an important moral and political idea. Similar arguments—all in the name
of efficiency — could be made to eliminate affirmative action or other policies that seek to
ameliorate the conditions which historically disadvantaged groups ofpeople have suffered.S4
Yet whoever seeks to make such an argument faces an unpalatable argument and a hostile
reception. Can one credibly make the argument that nothing is private? I would think not but,
in any event, it is a proposition to which I cannot subscribe.

This conception is also too narrow by focusing only on discreditable facts, which by its
nature, creates a sort ofperjorative air to the process. Not all information about an individual
is discreditable or misleading. The books we read, the products we buy, the people we
associate with are not necessarily unsavoury but we nonetheless view them as private
matters. Nor do all ofthe activities which we assume to be private occur in the privacy ofour
homes (with whom we associate for example).55 So the conception is too narrow on this score
as well.

Posner responds to this latter criticism by suggesting that it is not only discreditable facts
that individuals use privacy to conceal. Individuals also use privacy selectively in order to
mislead. They do so for two reasons.56 First, true facts are selectively revealed in order to
create different perceptions that people have about them. My friends have a much different
perception about me than does my boss even though I have tried to deceive neither. Second,
people are never reticent about revealing facts that show themselves in a favourable light.
"Reticence comes into play when one is speaking to people — friends, relatives,
acquaintances, business associates — who might use information about him to gain an
advantage in some business or social transaction with him. Reticence is generally a means
rather than an end."57

Posner's response fails to consider the importance that an individual's control over
information plays in privacy. Some private information we willingly disclose, but we
nonetheless expect to maintain some control over the information.58 Many claims ofprivilege
would also fall under this rubric.59 Full disclosure ofour information to our doctor or lawyer
is necessary to ensure we get adequate medical treatment or legal advice, as the case may be.
In such cases, is it reasonable to assume that we have, by our voluntary disclosure to our

A point similarly made by Ronald Dworkin when discussing different conceptions ofequahty in "What
is Equality? Part 3: The Place of Liberty" (1987) 73 Iowa L. Rev. 1.
Solove, supra note 26. Similarly, at 1153 he states:
Although many disruptions of privacy practices involve the disclosure of secrets much of the
information collected about individuals in databases consuls of day-to-day, often nonsecret
information such as name, address, phone number, race, gender, birth date and so on. Trying jo
fit the problem into the conception ofprivacy as secrecy will not illum.nate the problem very well,
in fact, important aspects of the problem will be ignored or marginalized.

/W"t 400rp"sOner notes that "(a]nyone who has ever sat next to a stranger on an airplane or a ski lift
knows the delight that people lake in talking about themselves to complete strangers.
SoLc characterizes this as selective disclosure - "criticizing a boss to a coworker does not mean that
the employee desires that her boss know her comments" (supra note 26 at 1108).
See below under privacy as Part D "Control Over Personal Information."
 564 Alberta Law Review (2006)43:3

doctor or lawyer, abandoned our interest in preventing our trusted advisors from further
disclosing our personal information? Perhaps, but perhaps that interest is not a "privacy"
interest except under the broadest conceptions of privacy.*"

Further, it is not simply the content of disclosed information that portrays an individual
in an unfavourable or favourable light. Often it is the context and the relationship between
various bits of information that determine how one is perceived. Technology allows the
collection, use and dissemination of personal information to occur effortlessly and, often,
without the knowledge of the individual. Accordingly, if individuals cannot correct the
information — either because they do not know that information about them has been
disclosed or because they do not have the ability or means by which to do so — then
Posner's economically efficient world of perfect disclosure is not feasible. Accordingly,
some privacy advocates (most notably Charles Fried) would shift the privacy battleground
to one ofcontrolling the extent to which personal information is used. It is to that conception
that 1 now turn.

D. Control over Personal Information

Under this conception, privacy is "the claim of individuals, groups, or institutions to

determine for themselves when, how, and to what extent information about them is
communicated to others."61 Fried, who is the leading proponent" ofthis conception, contends
that the notion that privacy is related to secrecy — to limiting the knowledge ofothers about
oneself— must be refined. Privacy is not simply an absence of information about us in the
minds of others; rather, it is the "control over knowledge about oneself."63

As noted above, control over personal information appears to be at the heart of claims of
privilege. Fried states:

An excellent, very different sort of example of a contingent, symbolic recognition of an area of privacy as
an expression of respect for personal integrity is the privilege against self-incrimination and the associated
doctrines denying officials the power to compel other kinds of information without some explicit warrant.
By according the privilege as fully as it does, our society affirms the extreme valueofthe individual's control
over information about himself. To be sure, prying inloa man's personal affairs by asking questions ofothers
or by observing him is not prevented by the privilege. Rather it is the point of the privilege that a man cannot
he forced to make public information about himself. Thereby his sense olconlrol over what others know of
him is significantly enhanced, even ifother sources ofthe same information exist. Without his cooperation,
the other sources are necessarily incomplete, since he himself is the only ineluctable witness to his own

Perhaps any "reversionary" interest is not based on some strained notion ofprivacy but on some other
icr
currently recognized form of action such as breach or trust or contract, for example. Alternatively
perhaps the^c/olthedisclosuredetcrmincswhetherprivacyisengagcd.lwilldcvclopthisaltcrnativt-
•n a subsequent essay where I contend that, at its essence, privacy is engaged where the disclosure will
tend to have a discriminatory effect — objectively determined — on an individual
Solove, supra note 26 at 1109-10.
Tried, supra note 26. See also Jeffrey Rosen. "The Purposes of Privacy: A Response" (2001) 89 Geo.
Tried, ibid, at 483.
 Privacy: A Review and Critique of the Literature 565

present life, public or private, internal or manifest. And information about himselfwhich others have to give
out is in one sense information over which he has already relinquished control.

One can readily see the similarities between this conception and others including limited
access and secrecy. As such, it suffers from the same sorts of criticisms. First, there are
problems defining its terms. What "information" is covered? Certainly, it cannot be all
information whatever its source. If so, the conception would be too broad. Perhaps it is
simply intimate information. But, in that event, it would be too narrow as other information
that we would not normally characterize as "intimate" we would still want protected
(financial information, salary, job description or title to name a lew examples). Further, by
focusing on information, the conception has been criticized for excluding those aspects of
privacy that are not informational, "such as the right to make certain fundamental decisions
about one's body, reproduction, or rearing of one's children"65 or to disruptions of one's
peace of mind, such as noises or smells."1

Also, what is meant by "control"? If "control" means ownership of the information, then
the conception may fit in some contexts, but not others. For example, who "owns" the health
information in a patient's chart — the patient to whom the information relates or the health
care provider who creates the chart?67 Who owns the information that a person was seen
walking into an abortion clinic — the observer or the participant? Or taken further, who
owns the information between two partners who collectively decide to have an abortion —
the mother (who undergoes the procedure) or the father (who may have participated in the
decision)? What if the mother thinks this is private but the father does not?

These issues highlight the difficulty posed by information that is capable of being
simultaneously possessed by a number of people - associations, for example. Who
controls the information in these cases? These issues also highlight the difficulty with the
commodification of information. Solovc states:

[T]hcre are problems with viewing personal information as equivalent to any other commodity. Personal
information is often formed in relationships with others, with all parties to that relationship having some
claim to that information. For example, individuals are not the lone creators of Ihcir web-browsmg
information, for most of that information is created from the interaction between the user and websttcs.
Often the market value of information is not created exclusively by the labor of the individual to whom it

Solovt t«pra note 26 at 1110. But should these fundamental decisions invoke privacy? There are two
dSnct'a^ecu of these types of decisions. There is. first, the abUUy or liberty to make the decs.on
iS Then comes the consequences that How from the decision, including who might have knowledge
"eiision taken. One wLd expect that "privacy" would be invoked for the second aspect, bm,
does not necessarily follow in my view that privacy should, or needs to be. mvoked lor the firs aspec
^decision The questions are entirely separate - can I do it? followed by. who knows that I d.d .1.'
bUI at I"l"l> vaty ... can be invaded even if nobody else knows something new about a person.
uch as being forced to hear propaganda, by being manipulated by subliminal advcrUsements. or by
being disrupted by a nuisance that thwarts one's ability to think or read" |lootnotes omitted].
K,rW v. UtacDonM. [19921 2 S.C.R. 138 [Mclnerney] suggests the latter, but a pat.cnt
nevertheless retains a right of access to his or her chart. ... .
So tl note 26 afl 113: "Unlike physical objects, mformation can be possessed s.multancously
wSn Iheminds of millions. This is why intellectual property law protects parucu.ar tang.blc
expressions of ideas rather than the underlying ideas themselves.
 566 Alberta Law Review (2006) 43:3

relates bul in part by the third party Unit compiles the information. For example, the value of personal
information for advertisers and marketers emerges in part from their consolidation and categorization ofthat
information."

Control over personal information, as a conception of privacy, does not adequately address
these issues.

E. Creation of Self/Personhood and the

Preservation of One's Dignity

Similar to privacy as autonomy, the personhood conception of privacy is defended on the

grounds that it protects an individual's self-identity, that it respects "those attributes [of an
individual which are] ... irreducible in [his] selfhood."70 Others have described this
conception variously as a protection against conduct that is "an affront to personal dignity
[and an] ... assault on human personality [to protection of] ... the individual's interest in
becoming, being, and remaining a person."71 It is a conception ofprivacy that has, at its core,
the individual's right to experiment and make choices in an effort to define himself. Without
privacy, it is argued, individuals inevitably bend to the "pressures to conform, ridicule,
punishment, unfavourable decisions, and other forms of hostile reaction."72 In that case, we
are less likely to experiment and make choices, even bad ones: in such an environment, "'[the
observed person] is fixed as something — with limited probabilities rather than infinite,
indeterminate possibilities."73

Edward J. Bloustein, an advocate of this conception, summarizes this matter as follows:

The man who is compelled to live every minute of his life among others and whose every need, thought,
desire, Tancy or gratification is subject to public scrutiny, has been deprived of his individuality and human
dignity. Such an individual merges with the mass. His opinions, being public, lend never to be different; his
aspirations, being known, tend always to be conventionally accepted ones; his feelings, being openly
exhibited, tend to lose their quality ofunique personal warmth and to become the feelings ofevery man. Such
a being, although sentient, is fungible; he is not an individual.74

The argument continues that to become the sort of independent, creative people that society
hopes for, md.viduals need - by trial and error - experience in formulating their own
judgments and in acting upon those judgments. Privacy provides the setting in which
ind.v.duals can obtain that experience.75 Without the chance to experiment in an effort to

" Ibid, [footnotes omitted].

* Rubenfeld, supra note 18 at 753, cited in Shepherd, supra note 40 at 268
Solove, supra note 26 at 1116 [footnotes omitted].
Gavison, supra note 46 at 448.
n
Stanley I. Bcnn "Privacy, Freedom, and Respect for Persons," in J. Roland Pcnnock & j. W Chapman
ta**l7H™^%ZTlT*'^cnoa^'!97I)' al7lcmPhasisi"°riein<<i)
NT.U L.L.ST^auSrPDig"ily:A"AnSW"'°°eanP™Sir<'964)39
N.Y.U. Rev. 962 at 1003. "
A contention disputed by Posner, supra note 21 at 407: "However, history does not teach that privacy
.s a preeondmon to creativity or individuality. These qualities have nourished in societie ncE
 Privacy: A Review and Critique of the Literature 567

define ourselves, "we will become something different than we currently are, something less
noble, less interesting, less worthy of respect."76

Most agree that this conception is either a more sophisticated version of "the right to be
let alone" conception, or more likely, a combination of the "right to be let alone" and the
"autonomy" conception. Regardless, it has certainly been applied more as the former and,
accordingly, suffers from the same criticisms, such as: the conception's notion of "dignity"
is too broad;77 it ignores the role that private actors play in modern day privacy invasions;
and it does not rise to the challenge when presented with competing liberties.7" With regards
to the latter criticism, Shepherd notes that this conception creates obvious tension between
a person's right to define himself and society's right to define itself. Shepherd uses the
following example:

We can sec this played out in the consideration of the right of individuals to engage in homosexual activity.
The pcrsonhood thesis would presumably support the right ofhomosexuals to engage in homosexual activity
because ofthe importance to their self-identity of such conduct. Under the pcrsonhood thesis, communities
could not legislate against such behaviourand therefore could not maintain legal intolerance ofhomosexuals.
The republican critique insists that the identity of individuals may be formed by and supported by inclusion
in communities. If the principles underlying the personhood thesis arc given full appreciation, then for
would-be members ofa community intolerant of homosexuals, self-identity is impcrmissibly infringed. The
value-neutrality ofthe personhood thesis, which is its core - that individuals have a right to define
themselves, even against the norms of society - is lost when it prevents the existence of communities
intolerant of some identities.

Leaving aside any comment that anti-discrimination advocates may make, this conception
has certain appeal. Its concern about maintaining dignity hints at understanding ofthe real
problem that, at least forme, privacy should address-equality. It perpetuates, however, the
existing paradigm of privacy as a concept: that privacy is a liberty issue. It may suffice for
the moment simply to repeat my view that all conceptions which have at their core a
conception of privacy as a form of licence will suffer from the same sorts of tension
illustrative in Shepherd's example. As will be developed below, 1 contend that all such

Rciman "Driving to the Panopticon," supra note 17 at 40.

SccTosl, supra note I at 2092-93 (quoting Jeffrey Rosen. The Unearned Gaze: The Des,ruc,,on of
Privacy in America (New York: Random House, 2000)):
To eile privacy with dignity is to ground privacy in social forms of respect that we owe each
other as members ofa common community. So understood, privacy presupposes persons> whc^are
socially embedded, whose identity and self-worth depend upon the performance ofsoc.al norms
L violation of which constitutes "intrinsic" injury. In these respects, the conceptionofpnvacy
as a form ofdignity is in theoretical and practical tension with Rosen's observat.on that [t]hc ideal
nfnrivacv insists that individuals should be allowed to define themselves" (ellipsis in original).
Posncr contends that Blouslein's view simply interchanges "privacy" for "personal liberty " wh.ch is
„ hallmark ofthe riRht to be let alone (Richard A. Posncr. "The 1978 James McCorm.ck Mitchell
Lecture Privacy. Secrecy, and Reputation" (1979) 28 Buff. L. Rev. I). Similarly. Solove stales that
theories of privacy as personhood tell us why we value privacy (to protect individuality, dignity,
and autonomy), but iheir usual focus on limiting state intervention in our decisions often gives too
little attention to the private sector.... Therefore, beyond an account of where the «ate ought to
leave individuals alone, personhood theories frequently fail to explain how personhood ,s to be
protected (supra note 26 at 1118).
Shepherd, supra note 40 at 270-71 [footnotes omitted].
 568 Alberta Law Review (2006)43:3

conceptions cannot adequately resolve the tension and, therefore, do not provide a
satisfactory conception of privacy.

F. Promotion of Intimacy and Relationships

This conception of privacy

recognizes thai privacy is not just essential to individual sell-creation, bill also to human relationships.... By
focusing on the rclalionship-orientcd value of privacy, the theory of privacy as intimacy attempts to define
what aspects oflile we should be able to restrict access to, or what information we should be able to control
or keep secret.""

The privacy tort represents not

"a value asserted by individuals against the demands of a curious and intrusive society," but a necessary
aspect ofrelations with others. Rather than upholding the "interests of individuals against the demands of
community," information privacy creates rules that in some significant measure "constitute both individuals
and community." The fashion by which privacy standards carry out this constitutive task is by confining
personal information within boundaries that the standards normalively define. In Post's words, privacy's
function is to develop "information territories." The establishment of these "information preserves" is a
critical means for defining social and individual life.... The critical inquiry ... is whether the "reasonable
person" would find certain invasions of privacy "highly offensive.'**1

This conception, too, is generally seen as too broad: everything that is intimate may not be
private and vice versa.82 For example, Solove states:

The conception of privacy as intimacy fails to capture the problem in this context because for the most part,
databases do not invade or disrupt our intimate lives. Our names, addresses, types of cars we own, and so
on are not intimate facts about our existence, certainly not equivalent to our deeply held secrets or carefully
guarded diary entries. In cyberspace, most of our relationships are more like business transactions than
intimate interpersonal relationships.83

Solove, supra note 26 at 1121.

Treanor & Schwartz, supn, note 45 at 2177-78, quoting Robert C. l>ost. "The Social Foundations of
nvacy.CommunayandSelfmlheCommon Law Tort" (1989) 77 Cal.L. Rev. 957 (footnotes omitted],
W L. Weiiwcm "The Private and the Free: A Conceptual Inquiry" in Pennock & Chapman, eds.. »Ja
note 73 at 27: Individuals not intimately related may nevertheless assert that their relation or activity
■s a pnvate one in the sense that it is not the proper concern of the community or some institution, such
as the slate, a church, or a business firm."
Solove, supra note 26 at 115.1-54.
 Privacy: A Review and Critique of the Literature 562

III. A Critique of the Current Conceptions

A. Summary of Standing Criticisms

A general overview of the criticisms is in order. The criticisms contend that the
conceptions are either too narrow or too broad in their application. Indeed, they are often
both simultaneously.

The prevailing conceptions are too narrow by emphasizing state action in private
activities and ignoring the impact that private actors have on privacy in a modern society
(right to be let alone or dignity). They are also too narrow because they are confined to
particular situations (autonomy) or particular types of information (discreditable facts or
intimate information, for example) that ignore a broader interest that a person may have in
subsequently controlling information that has voluntarily been disclosed.

They are also too broad. Many of the conceptions are overly expansive. Some situations
require the state to intervene on its citizens' behalf, so it is difficult unequivocally to defend
conceptions of privacy that require non-interference by the state (right to be let alone,
dignity). For other conceptions, the type of information protected is overly broad by
protecting all sorts of innocuous information or activities that we would not normally
consider private. One would assume that only certain types ofactivities or information would
attract privacy (autonomy, control over information). Finally, some conceptions (control over
information, promoting relationships) fail to consider the difficulty posed by information that
is capable ofbeing simultaneously possessed by a number of people — who owns or controls
the information in those cases?

B. Analysis of Standing Criticisms

The criticisms have, at their core, two components. First, the conceptions suffer from
intuitionism. They offer an intuitive approach ofwhat makes things "private." They assume,
incorrrectly in my view, that we approach privacy with a common understanding of the
concept or concepts, that the term "privacy" expresses. "Individual autonomy," "dignity"
and "creation of self are themselves concepts capable of different conceptions. Without
consensus about the underlying concepts associated with each conception, none of the
conceptions can provide a coherent theory of privacy.

Second underlying the various conceptions of privacy is a concept of liberty which is

itself flawed "Liberty" is seen as a form of licence, protecting — in its most crude form —
an individual's right to do as he pleases. Privacy protects, under such a view, simply "action
verbs" - to possess pornography, to associate with unsavoury causes or to make unpopular
decisions The deficiencies with such a view come into focus when competing liberty
interests are at stake. Whose liberty interest prevails where you have a particular conception
of a moral society, but I choose to live a lifestyle that you consider immoral? Privacy has
been invoked to justify, or deny, these sorts of decisions.

Each of these criticisms will be considered in turn.

 570 Alberta Law Review (2006)43:3

1. Intuitionism

One significant difficulty with the prevailing conceptions of privacy is that they are all
premised, in varying degrees, on an "intuitionist analysis." "Individual autonomy," "dignity,"
and "creation of self," to take a few examples, are themselves concepts capable of different
conceptions. Intuitionist arguments presume universal conception of these vague concepts.
Ifconsensus does not exist, the conceptions will be exposed as incoherent failures. James Q.
Whitman puts the matter thus:

Overwhelmingly, privacy advocates rely on what moral philosophers call "intuitionist" arguments. In their
crude form, these sorts of arguments suppose that human beings have a direct, intuitive grasp of right and
wrong — an intuitive giasp that can guide us in our ordinary ethical decisionmaking. Privacy advocates
evidently suppose the same thing. Thus, the typical privacy article rests its case precisely on an appeal to its
reader's intuitions and anxieties about the evils ofprivacy violations. Imagine invasions ofyourprivacy, the
argument runs. Do they not seem like violations ofyour very personhood? Since violations of privacy seem
intuitively horrible to everybody, the argument continues, safeguarding privacy must be a legal imperative,
just as safeguarding property or contract is a legal imperative. Indeed, privacy matters so much to us that laws
protecting it must be a basic element of human rights.84

One does not need to strain to find evidence of intuitive analysis lying at the heart of
various conceptions. Shepherd, for example when describing elements of the personhood
conception of privacy, states:

While it is true that the specific relationships or endeavours or pursuits that will be meaningful to each
individual are unique to that individual, we probably have some general, rough consensus ofthe sorts of
things that supply individuals with meaning — or at least the sorts of freedoms they need to search for
them.85

Comments like these evidencing an intuitionist analysis are not unique to academic lawyers.
Examples of intuitive analysis also exist in the judiciary.8*

James Q. Whitman, "The Two Western Cultures or Privacy: Dignity Versus Liberty" (2004) 113 Yale
L.J. 1151 at 1154 (footnotes omitted, emphasis added].
Shepherd, supra note 40 at 303 [emphasis added].
None of our "informational privacy" cases that have, in date, been considered on judicial review have
approached ihe issue first by conceptualizing what privacy is generally before considering the statutory
language used. Further, the prevailing trend is for the courts to not simply defer to the decisions ofthe
Information and Privacy Commissioners — all ofwhom have superior expertise to that ofthe courts in
matters involving privacy, which is one factor that bespeaks of a deferential standard of review. This
raises the potential of adding another layer of intuitive analysis on the issue. I include the following
cases as examples of this: Information Commissioner v. RCMP, supra note 8; Macdonell v. Quebec
(Commission d acces a I ■information), supra note 7; Dagg, supra note 2; The University ofAlberta v
Pylypiuk (2002), 310 A.R. 300.2002 ABQB 22; Alberta v. Krushell (2003), 340 A.R. 227,2002 ABQB
252: John Doe v. Ontario (Information & Privacy Commissioner) (1993), 13 O.R. (3d) 767 (Gen. Div )•
Ontario (Solicitor General) v. Ontario (Assistant Information and Privacy Commissioner) (1993) 10">
D.L.R. (4th) 602 (Ont. Gen. Div.) rev'd (1993), 107 D.L.R. (4th) 454 (Ont. C.A.); Ontario (Attorney
General) v. Fineberg (1994), 19 O.R. (3d) 197 (Gen. Div.); Ontario (Workers' Compensation Hoard)
v. Ontario (Assistant Information & Privacy Commissioner) (1999), 41 O.R. (3d) 464 (C A )• Ontario
(Freedom of Information & Protection of Privacy Co-ordinator. Ministry of Finance) v Ontario
(Assistant Information & Privacy Commission) (1997), 46 Admin. L.R. (2d) 115 (Ont Gen Div )•
Walmsley v. Ontario (Attorney General) (1997), 34 O.R. (3d) 611 (C.A.); Fletcher Challenge Canada
 Privacy: A Review and Critique of the Literature 57J_

It is simply inconceivable that intuitive consensus is possible, nor is such an approach

desirable. Whitman observes that "no matter how anxiety-inducing it may be to read these
authors [who assume an intuitionist approach], their arguments only carry real weight if it
is true that the intuitions they evoke are shared by all human beings."87 Since "intuitive
commonality" is not possible. Whitman rejects all arguments based on intuitionism:

Indeed, it is a basic error lo try to explain or justify any aspect of the law by appealing to our unmediatcd
intuitions about what seems evil or horrible.... Crude intuitionism is pretty much dead among moral
philosophers, and it ought to be dead in the law too.... In liberal Western societies, law is regarded as a
weapon of last resort, to be drawn only when authentically fundamental values of society are at stake. This
has a consequence that deserves lo be stated over and over again: It is the very nature of being a member of
a liberal society that one must live with many things that seem horrible. If the sort ofarguments mounted by
privacy advocates were valid, many things indeed would be forbidden.... (For privacy] [w]e cannot simply
start by asking ourselves whether privacy violations arc intuitively horrible or nightmarish. The job is harder
than that. We have lo identify the fundamental values that are at stake in the "privacy" question as it is
understood in a given society. The task is not to realize the true universal values of "privacy" in every
society. The law puts more limits on us than that: The law will not work as law, unless it seems lo people
to embody the basic commitments of their society.

While I generally agree with Whitman's rejection of intuitionist analysis, he ignores the
underlying problem with the approach. Intuitionist arguments presume abstract concepts back
into the argument before consensus on these concepts is evident. As stated above, a
conception can only approach coherence if, and when, reasonable people agree on the
underlying concepts. Why quibble about what fairness dictates in any given situation, if we
are unable to agree that fairness is a desirable objective in the first place? In the context of
privacy, one would expect to see the conceptions falter if the underlying concept — privacy
as liberty — is demonstrated to be deficient. This leads to my next criticism, addressed
below.

2. LIBERTY AS A FORM OF LICENCE

A related criticism is that the current conceptions of privacy are invariably based on an
underlying concept of privacy as a liberty interest which is itself flawed. They have, as their
rallying point, a conception of liberty as a form of licence which finds "liberty," as a
commodity,*9 at odds with state interests. Numerous examples demonstrate that privacy, at
least in the U.S., is primarily invoked to protect various liberty interests — "action" verbs

Ltd. v, British Columbia (Information & Privacy Commissioner) (19%), 38 Admin. L.R. (2d) 230
(B.C.S.C); Aquasourct: Ltd. v. British Columbia (Information & Privacy Commissioner), [1999) 6
W.W.R. 1 (B.C.C.A.).
Whitman, supra note 84 at 1155.
Ibid, at 1220 (emphasis in original).
To use Dworkin's language, supra note 25.
572 Alberta Law Review (2006)43:3

— from intrusions by the state."*1 Privacy has been asserted to allow abortions,91
contraceptives for married92 and unmarried couples,93 interracial marriages,94 "unnatural"
sexual activity95 and the private possession of "obscene" material.96

Two consequences follow when liberty is conceived as a form of licence. Insofar as liberty
is in competition with state interests, privacy is simply a negative form of liberty. Dworkin
characterizes negative liberty as the absence ofconstraints placed upon an individual by the
state:

I have in mind the traditional definition of liberty as (he absence ofconstraints placed by a government upon
whal a man might do i The wants to. Isaiah Berlin, in the most famous modem essay on liberty, put the matter
this way: "The sense of freedom, in which I use this term, entails not simply the absence of frustration but
the absence of obstacles to possible choices and activities — absence of obstructions on roads along which
a man can decide to walk.* This conception of liberty as license is neutral amongst the various activities a
man might pursue, the various roads he might wish to walk.97

Liberty as a form of licence ignores the fact that privacy has both negative and positive
aspects to it. As noted above, many of the conceptions are particularly vulnerable to criticism
simply because they consider only the role that state interference plays and ignore the
broader impact that private actors play in modern invasions of privacy. A coherent
conception of privacy would seem to embrace state intervention in some cases, and state

Indeed, even scholars seem to concede that it is a conception of privacy that is liberty based, although
they may not concede that the conception of liberty is in turn a form of licence. For example. Fried
states: "Most obviously, privacy in its dimension of control over information is an aspect of personal
liberty" (supra note 26 at 483). In a similar vein. Whitman states:
At its conceptual core, the American right to privacy still takes much the form that it took in the
eighteenth century: It is the right to freedom from intrusions by the state, especially in one's own
home. The prime danger, from the American point of view, is that "the sanctity of [ourj home[s],"
in the words of a leading nineteenth-century Supreme Court opinion on privacy [Boyd v. United
Sidles, 116 U.S. 616, (1886)], will be breached by government actors. American anxieties thus
focus comparatively little on the media. Instead, they tend to be anxieties about maintaining n kind
of private sovereignty within our own walls (supra note 84 at 1161-62 [footnotes omitted]).
Finally, while commenting on the right to be let alone, autonomy and promoting human relationships
conceptions or privacy, Gavison notes that they are all based on liberty arguments:
Each ofthese arguments based on privacy's promotion ofliberty shares a common ground: privacy
permits individuals to do what they would not do without it for fear of an unpleasant or hostile
reaction from others. This reaction may be anything from legal punishment or compulsory
commitment to threats to dissolve an important relationship. The question arises, then, whether it
is appropriate for privacy to permit individuals to escape responsibility for their actions, w ishes,
and opinions (supra note 46 at 4SI).
Roe v. Wade, supra note 38.
(Jriswold, supra note 39.
Eisensladl, supra note 39.
hiving v. Virginia, 388 U.S. I (l%7).
Lawrence v. Texas, 539 U.S. 235 (2003), which dealt with sodomy.
Loving v. Virginia, supra note 94.
Dworkin, supra note 25 at 267.
 Privacy: A Review and Critique of the Literature 573

silence in others.98 As mentioned previously, such a conception is not likely where liberty
is viewed as a form of licence.

Second, ifa form oflicence, then liberty is not simply at odds with the state but often finds
itself in competition with other liberty interests." As such, some individual (or societal)
liberty interest must take preference—and therefore importance — over a competing liberty
interest. Dworkin, for example, describes the problem as follows:

Liberty as license is an indiscriminate concept because il does not distinguish among forms of behavior.
Every prescriptive law diminishes a citizen's liberty as license: good laws, like laws prohibiting murder,
diminish this liberty in the same way, and possibly to a greater degree, as bad laws, like laws prohibiting
political speech. The question raised by any such law is not whether it attacks liberty, which it docs, but
whether the attack is justified by some competing value, like equality or safety or public amenity. I fa social
philosopher places a very high value on liberty as license, he may be understood as arguing for a lower
relative value for these competing values. If he defends freedom of speech, for example, by some general
argument in favour or license, then his argument also supports, at least pro lanlo, freedom to form
monopolies or smash storefront windows.

In the context of privacy, this is tantamount to an acknowledgment that one privacy interest
is more important than another privacy interest. This amounts to a zero sum gain. Further,
when privacy competes with other liberty values, privacy claims do not generally succeed,
at least in the U.S. This is particularly true where rights enumerated in the American
Constitution such as right to freedom of the press or freedom of speech compete with non-
enumerated rights such as privacy:""

[P]rivacy is not the only cherished American value. We also cherish information, and candour, and freedom
of speech. We expect to be free to discover and discuss the secrets ofour neighbours, celebrities, and public
officials. We expect government to conduct its business publicly, even if that infringes the privacy ofthose
caught up in the matter. Most ofall, we expect the media to uncover the truth and report it — not merely the
truth about government and public affairs, but the truth about people.

Solove, supra note 26 at 1120 notes the importance of positive liberty for privacy:
Without protection against rape, assault, trespass, collection of personal information, and so on,
we would have little privacy and scant space or security to engage in self-definition. To preserve
people's ability to engage in self-definition, the stale must actively intervene to curtail the power
of customs and norms that constrain freedom.
Just as academic lawyers concede that iheir conceptions are liberty-based, they also seem to
acknowledge the challenge presented by competing liberties:
[As] is true for property or bodily security, the control over privacy must be limited by the rights
of others. And as in the cases of property and bodily security, so too with privacy the more one
ventures into the outside, the more one pursues one's other interests with the aid of, in competition
with, or even in the presence of others, the more one must risk invasions of privacy( Fried, supra
note 26 at 486).
Dworkin, supra note 25 at 262.
Jesse A. Mudd,"Righl to Privacy v. FreedomofSpeech: A Review and Analysis of Rartmcki v. Voppcr
C002) 41 Brandcis L.J. 179. See Murphy, supra note 19 at 2392 where he concludes:
The disclosure tort is not a complete dead letter: il is technically a viable cause of action in about
thirty-five states, and occasionally plaintiffs win. But overall, it has fared poorly. One reason it has
failed is that it is not conceived as a dispute about property rights in information, but rather as a
battle between First Amendment values and an inchoate, elastic privacy "right." It is easy to sec
why me First Amendment generally wins this battle [footnotes omitted].
 574 Alberta Law Review (2006) 43:3

The law protects these expectations loo — and when they collide with expectations of privacy, privacy
almost always loses.102

Is it possible to conceptualize privacy in such a fashion that "true" privacy claims do not
compete?103 Ifthe standings conceptions ofprivacy are deficient, then what options does the
modern privacy advocate have? Two alternatives have been suggested. It is to these that 1
now turn.

IV. Alternatives for Privacy

The current conceptions of privacy are, quite simply, deficient. As the examples at the
start of this essay suggest, this bold statement should not come as a surprise. Indeed,
scholars, while championing their own conceptions, ably articulate why other conceptions
are inadequate to explain the myriad of ways that privacy is affected in our daily lives. I am
by no means the only — or first — writer to note this. Tom Gerety observed that privacy has
"a protean capacity to be all things to all lawyers."104 Others have commented that the only
thing that the various conceptions ofprivacy have in common is simply the privacy label."15

Ifthe current conceptions do not work, then we are left with the several alternatives. First,
we can, as some scholars have done, abandon the conceptions individually in favour of a
consortium of conceptions working together. If no one conception is persuasive, perhaps a
cluster of conceptions taken in concert will be more successful.

Alternatively, we can abandon the search for a core value of privacy in favour of a
different conceptual framework. Solovc does precisely this by abandoning the search for the
essence of privacy in favour of a "pragmatic" approach to privacy which "focuses on the
palpable consequences of ideas rather than on their correspondence to an ultimate reality."10*
In Solove's view, "there is no one answer [to privacy,] but a variety of answers depending
on a variety of factors."107

1 will consider these two alternatives in turn.10"

David A. Anderson, "The Failure of American Privacy Law" in Basil S. Markesinis, ed., Protecting
Privacy: The Clifford Chance Lectures. Volume Four (New York: Oxford University Press, 1999) 139
at 140.
I contend that it is indeed possible, but not if we continue to conceive ofprivacy as liberty and to hold
on to the standing conceptions thereof which view liberty as a form of licence.
Tom Gerety, "Redefining Privacy" < 1977) 12 llarv. C.R.-C.LL. Rev. 233 at 234.
Solove, supra note 26.
Ibid, at 1091. This approach, Solove contends, "urges philosophers to become more ensconced in the
problems of everyday life; adapts theory to respond to flux and change rather than seeking to isolate
fixed and immutable general principles; and emphasizes the importance of the concrete, historical anil
factual circumstances of life."
Ibid, at 1098-99.
A third alternative is to change Ihe existing paradigm against which privacy is evaluated.
 Privacy: A Review and Critique or the Literature 575

A. Combine C urrent Conceptions

One can readily find evidence suggesting that several of the conceptions overlap. Indeed,
often proponents of one conception of privacy seem to use terminology associated with
another. In some cases, the overlapping appears to be innocent, almost as if by accident. For
example, autonomy is often used in the same context as the creation of self or dignity, or
alternatively, the right to be let alone is commonly cited in contexts where personhood or
autonomy is the conception of privacy being advanced. One is often left, in such cases,
wondering which conception of privacy is actually being championed.

One example of this latter approach is the "anti-totalitarian" conception of privacy

advocated by Jed Rubenfeld.10' Under this view, the right of privacy prevents the state from
occupying the totality ofour lives: "The point is not to save for the individual an abstract and
chimerical right of defining himself; the point is to prevent the state from taking over, or
taking undue advantage of, those processes by which individuals are defined in order to
produce overly standardized, functional citizens."110 Shepherd has observed that, under this
view: "Democracy, by definition, rejects totalitarian intrusions into people's lives because
totalitarianism destroys the independent thinking nature of the population needed to sustain
the democracy."1"

Without privacy rights or some other protection against totalitarianism, we will have,
under this view, "a monolithic society created by government-imposed norms.""2 That is,
we will have state-created automatons. Rubenfeld seems to connect the right to be let alone
conception with the personhood or autonomy conceptions ofprivacy. Which one is not clear.
He complicates the conception further by drawing an additional distinction between an
individual's right to define himself and society's right to define itself. However it is viewed,
the right to be let alone appears to be fundamental to Rubenfeld's conception. As with other
similar conceptions, this conception does not contemplate the role that non-state actors play
in the privacy arena.

Alternatively, sometimes the overlap appears to be by design. Given the recognition that
no one conception of privacy seems satisfactorily to address all privacy claims, some
scholars have abandoned any single conception in favour of a combined conception. An
attempt to conceptualize privacy by connecting three distinct concepts — control over
information, dignity/personhood and autonomy — is one such attempt."3 Consider the
following argument for privacy made by Jeffrey Rosen:

When private information is taken out of context, the only way to try to put the information in a broader
context is to reveal more private information. This only increases the risk ofmisinterpretation because certain
kinds of private information can only be understood in a context of intimacy and should only be exposed
under conditions of trust. This means that even if the revelation of more private information led to more
understanding, it would nevertheless compound the injury of the initial exposure. That injury is an offense

m Rubenfeld, supra note 18.

10 Ibid, at 794.
Shepherd, supra note 40 at 275.
112 Ibid.
13 See Post, supra note I, where he reviews this recent conceptualization.
 576 Alberta Law Review (2006) 43:3

against autonomy as well as dignity — against both the self-defined "I" and the socially defined "me." The
autonomy that the backstage area protects is not merely freedom from totalizing forms of state scrutiny but
also freedom from overly intrusive forms ofsocial scrutiny. Respecting the privacy ofthat backstage spares
us the burden of justifying differences that no one in a liberal society should be forced to submit to
communal inspection and debate.1 >4

Rosen's choice of terminology certainly seems to suggest he is advancing several

conceptions of privacy at once.

This alternative does have some appeal. Although suffering from criticisms of being too
broad, or too narrow, or both, the current conceptions considered in isolation seem to provide
— at least superficially — the best explanation ofprivacy in some contexts. Certainly more
"privacy" cases will be caught if the conceptions are considered cumulatively, rather than
in isolation. The disadvantage with this approach is that it does not answer our original
question: is there a common value inherent in all privacy cases? Unless a common
denominator is articulated, combining conceptions simply perpetuates the piecemeal,
haphazard approach to privacy that has marked the privacy landscape so far. Nor will it
provide a satisfactory answer for the hard privacy cases as they occur."5

I. Conceptions of Privacy and the Canadian Judiciary

One does not need to strain to find evidence that the current conceptions ofprivacy have
found a voice within thejudiciary. I have previously highlighted some U.S. cases which have
espoused various conceptions of privacy in support of their decisions."6 The current
conceptions ofprivacy are also evident in Canadianjurisprudence. A small sampling ofcases
will suffice to make this point."'

It is perhaps not surprising that the "right to be let alone" conception of privacy is
predominantly found in the context of the criminal law. Prohibitions against unreasonable
search and seizure1 '* attempt to balance important, but competing, individual interests (such
as privacy and de facto liberty) against state interests in crime detection and prevention.

Rosen, supra note 62 at 2118.

To borrow from Dworkin who applies his rights theory to a series of "hard" cases.
Scholars do not, however, invariably agree on which conception ofprivacy governs in any given case
Many scholars suggest that the "right to be let alone" is the prevailing conception for cases involving
abortion (Roe v. Wade, supra note 38), interracial marriages and the availability of contraceptives
(GrLnvold and EisenslaJl, supra note 39). Solove, by contrast, characterizes these decisions as based
on the personhood conception of privacy (supra note 26).
An exhaustive summary ofCanadian cases is not required to make the point that the current conceptions
ofprivacy do indeed form the basis for many orthejudiciary's decisions involving privacy. I am simply
arguing that the conception of privacy must evolve into privacy as an equality right. For an exhaustive
review ofCanadian jurisprudence, see Barbara A. Mclsaac, Rick Shields & Kris Klein, eds The Lmv
ofPrivacy in Canada. Ioosclcaf(Toronto: Carswell, 2000).
Section 8 of the Canadian Charter, supra note 10, states: "Everyone has the right to be secure against
unreasonable search or seizure." The Fourth Amendment of the United States Constitution provides-
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause
supported by Oath or affirmation, and particularly describing the place to be searched, and the persons
or things to be seized." ^
 Privacy: A Review and Critique of the Literature 577

Hunter v. Southam Inc. is, of course, the seminal case illustrative of this conception."9
Paraphrasing Warren and Brandeis, Dickson J. (as he then was) characterized privacy as
simply the "public's interest in being left alone by government."120 In doing so, however,
Dickson J. (as he then was) emphasized that s. 8 of the Charier protects "people, not places
or things" — an attempt, no doubt, to distance the Canadian Court from the problems
experienced in American jurisprudence that seems preoccupied with the "sanctity of one's
home."121

The "right to be let alone" conception is not the only conception of privacy that the
Supreme Court of Canada has embraced, nor are the conceptions limited to consideration in
criminal cases.

In Hill v. Church ofScientology ofToronto,m which dealt with a Charter challenge to the
common law tort ofdefamation, Cory J. reiterated the constitutional significance ofthe right
to privacy emphasizing the "autonomy" conception of privacy.1
. 123

[1984] 2 S.C.R. 145 [Hunter]. The facts of this case are well known but bear repeating: Involved the
constitutionality of s. 10(1) and 10(3) of the Combines Investigation Act, R.S.C. 1970, c. C-23 and
specifically whether the broad search and seizure provisions were inconsistent with the right to be secure
against unreasonable search and seizure. Pursuant to s. 10(1) of the Combines Investigation Act, the
Director of Investigation and Research of the Combines Investigation Branch authorized several
Combines Investigation officers to enter and examine documents and other things at a respondent's
business premises in Edmonton "and elsewhere in Canada." The authorization was certified by a member
ofthe Restrictive Trade Practices Commission pursuant to s. 10(3) ofthe Act. The authorization was not,
however, a judicial warrant.
Dickson J. (as he then was) states:
The guarantee of security from unreasonable search and seizure only protects a reasonable
expectation. This limitation on the right guaranteed by s. 8, whether it is expressed negatively as
freedom from "unreasonable" search and seizure, or positively as an entitlement to a "reasonable"
expectation of privacy, indicates that an assessment must be made as to whether in a particular
situation the public's interest in being left alone by government must give way to the
government's interest in intruding on the individual's privacy in order to advance its goals,
notably those of law enforcement [Hunter, ibid, at 159-60 [emphasis in original]).
A point echoed by La Forest J. in Dyment, (supra note 3 at 426-27)whcrc he notes that, while having
its historical roots in the right against unreasonable search and seizure, the right to be let alone simply
in one's home is not sufficiently broad enough to address modem privacy concerns in the criminal law:
The lives of people in earlier times centred around the home and the significant obstacles built by
the law against governmental intrusions on property were clearly seen by Coke to be for its
occupant's "defence" and "repose"; see Semayne s Case (1604), 5 Co. Rep. 91 a, 77 E.R. 194,
at p 91 b and p. 195 respectively. Though rationalized in terms of property in the great case of
Entick v. Carrington (1765), 19 St. Tr. 1029, 2 Wils. K.B. 275, 95 E.R. 807, the effect of the
common law right against unreasonable searches and seizures was the protection of individual
privacy. Viewed in this light, it should not be cause for surprise that a constitutionally enshrined
right against unreasonable search and seizure should be construed in terms of that underlying
purpose unrestrained now by the technical tools originally devised for securing that purpose.
However that may be, this Court in Hunter v. Southam Inc. clearly held, in Dickson J.'s words,
that the purpose of s. 8 "is ... to protect individuals from unjustified state intrusions upon their
privacy" (supra, p. 160) and that it should be interpreted broadly to achieve that end, uninhibited
by the historical accoutrements that gave it birth.
[I995J2S.C.R. 1130.
Although to be fair, Cory J. also mentions in passing that defamatory comments are an "affront to that
person's dignity" (ibid, at 1179).
578 Alberta Law Review (2006)43:3

In/?, v. Plant12* and Mclnerneyv. MacDonald,l2i "control over information" is the primary
conception of privacy being considered. In Plant,126 Sopinka J. emphasized that although a
person may feel compelled to disclose information about himself, he may nevertheless have
a reasonable expectation that the information shall remain confidential to the persons to
whom, and restricted to the purposes for which, it is divulged. Such expectations must be
constitutionally protected.127

Mclnerney was a civil suit involving privacy of medical records. While technically an
access issue and not an invasion issue per se, Mclnerney demonstrated the judiciary's
concern about an individual retaining some form of control over his or her personal
information. Here a patient sought access to her medical records. Some but not all records
were provided to her.128 In ordering the entire file — including the disputed reports — be
provided to the patient, La Forest J. for the Court emphasized that an individual retains a
"basic and continuing interest in what happens to [personal] information, and in controlling
access to it."129 This interest continues even where the individual lacks any proprietary rights
in the form of record.

Supra note 11.

Supra note 67.
Plant (supra note 11) dealt with a search and seizure ofthe electric consumption records ofa suspected
drug dealer stored in the computer database of the utility company. The majority of the Supreme Court
of Canada held that such records were not personal and confidential and, therefore, did not attract
constitutional protection.
Plain, ibid Interestingly, however, Sopinka J. concluded that the electricity records do not attract
constitutional protection. Compare his reasoning with that of McLachlin J. (as she then was) who,
though ultimately agreeing with Sopinka J.'s result, nevertheless concluded that the records were indeed
private, requiring the state tojustify a warrantless search. She staled at 302-303:
The question in each case is whether the evidence discloses a reasonable expectation that the
information will be kept in confidence and restricted to the purposes for which it is given.
Although 1 find the case ofelectricity consumption records close to the line, 1 have concluded that
the evidence here discloses a sufficient expectation of privacy to require the police to obtain a
warrant before eliciting the information. 1 conclude that the information was not public, since
there is no evidence suggesting that this information was available to the public and the police
obtained access only by reason ofa special arrangement. The records are capable oftelling much
about one's personal lifestyle, such as how many people lived in the house and what sort of
activities were probably taking place there. The records tell a story about what is happening inside
a private dwelling, the most private of places. I think that a reasonable person looking at these
facts would conclude that the records should be used only for the purpose for which they were
made — the delivery and billing of electricity — and not divulged to strangers without proper
legal authorization.
I disagree with my colleague's assertion that "[t]he computer records investigated in the case at
bar while revealing the pattern ofelectricity consumption in the residence cannot reasonably be
said to reveal intimate details of the appellant's life since electricity consumption reveals very
little about the personal lifestyle or private decisions of the occupant of the residence" (p. 293).
The very reason the police wanted these records was to learn about the appellant's personal
lifestyle, i.e. the fact that he was growing marihuana. More generally, electricity consumption
records may, as already noted, reveal how many people live in a house and much about what they
do. While not as revealing as many types of records, they can disclose important personal
information.
The doctor provided copies of all notes, memoranda and reports that she had prepared but refused to
produce copies of reports prepared by other physicians.
La Forest J. in Mclnerney, supra note 67 at 148 [citation omitted].
 Privacy: A Review and Critique of the Literature 579

Several cases have emphasized the personhood/dignity conception of privacy. Both R. v.

O'Connor™ and M.(A.) v. Ryanm involved production of medical and counselling records,
but in entirely different contexts.132 In both cases, however, the Supreme Court of Canada
emphasized the impact that the production of private medical records would have on the
dignity of the complainants and plaintiffas the case may be. For example, L'Heureux-Dube
J. stated in Ryan:

Writing for the Court on this issue, I concluded that the rights to individual liberty and security ol'lhe person
as enshrined in s. 7 oflhe Charier encompassed a right to privacy. This finding was based on a number of
developments in the jurisprudence of this Court. In its s. 7 jurisprudence, it has expressed great sympathy
with the notion that liberty and security of the person involve privacy interests. That privacy is essential to
human dignity, a basic value underlying the Charter, has also been recognized. Our right to security of the
person under s. 7 has been found to include protection from psychological trauma which can be occasioned
by an invasion ofour privacy. Certainly, the breach of the privacy of a sexual assault plaintiff constitutes a
severe assault on her psychological well-being. Section 8 also reveals that the Charier is clearly premised
on a respect for the interests of individuals in their privacy.'3

In Schreiber v. Canada (Attorney General),13* although disagreeing on whether a

reasonable expectation of privacy existed, the justices reiterated this conception. For
example, Lamer C.J.C. stated:

This Court has said a great deal about how expectations of privacy, and their reasonableness, can be
ascertained. In my view, the single most important idea that emerges from the jurisprudence is that
expectations ofprivacy must necessarily vary with the context. This is inherent in the idea that privacy is not
a right tied to property, but rather a crucial clement of individual freedom which requires the slate to respect
the dignity, autonomy and integrity ofthe individual. The degree ofprivacy which the law protects is closely
linked to the effect that a breach ofthat privacy would have on the freedom and dignity ofthe individual.

Finally, R. v. Dymentm is significant. In Dyment, the Court combined several of the

conceptions to address privacy.137 In identifying those situations where society should be

130 [ 1995] 4 S.C.R. 411 [O Connor].

131 |1997] 1 S.C.R. 157 [Ryan).
'" In O Connor (supra note 130), an accused in a sexual assault case wanted access to counselling records
of the complainants held by third parties. Ryan, ibid, involved a similar request for disclosure by the
defendant in a civil suit for sexual assault brought by his victim. Both cases arc considered important
from a constitutional point of view as some consider O'Connor and Ryan as establishing s. 7 of the
Charter as the constitutional source for a right to privacy. Indeed, L'Heureux-Dube J. said as much in
Ryan.
133 Supra note 131 at para. 80.
134 Supra note 12.
135 Ibid, at 854.
136 Supra note 3.
"7 To be fair, several cases have used terminology' associated with different conceptions. They do so only
in passing and generally only after emphasizing another conception. In Mclnerney, supra note 67, for
example. La Forest J. commented on an individual's autonomy at 148:
When a patient approaches a physician for health care, he or she discloses sensitive information
concerning personal aspects of his or her life. The patient may also bring into the relationship
information relating to work done by other medical professionals. The policy statement oflhe
Canadian Medical Association cited earlier indicates that a physician cannot obtain access to this
information without the patient's consent or a court order. Thus, at least in part, medical records
 580 Alberta Law Review (2006)43:3

most alert to privacy considerations, La Forest J. adopted different zones of privacy: those
involving territorial or spatial aspects, those related to the person and those that arise in the
information context.138 In doing so, several conceptions are involved. Justice La Forest
stated:

As noted previously, territorial claims were originally legally and conceptually tied to properly, which meant
that legal claims to privacy in this sense were largely confined to the home. But as Westin. supra, at p. 363,
has observed, "(t]o protect privacy only in the home ... is to shelter what has become, in modern society,
only a small part ofthe individual's daily environmental need for privacy". Hunter v. Soullmm Inc. ruptured
the shackles that confined these claims to property. Dickson J., at p. 159, rightly adopted the view originally
put forward by Stewart J. in Katz \: United States, 389 U.S. 347 (1967), at p. 351, that what is protected is
people, not places. This is not to say that some places, because of the nature of the social interactions that
occur there, should not prompt us to be especially alert to the need to protect individual privacy.

Finally, there is privacy in relation to information. This too is based on the notion ofthe dignity and integrity
of the individual. As the Task Force put it (p. 13): "This notion of privacy derives from the assumption that
all information about a person is in a fundamental way his own, for him to communicate or retain for himself
as he sees fit." In modem society, especially, retention of information about oncseiris extremely important.
We may, for one reason or another, wish or be compelled to reveal such information, but situations abound
where the reasonable expectations of the individual that the information shall remain confidential to the
persons to whom, and restricted to the purposes for which it is divulged, must be protected.139

As demonstrated previously, one of the main criticisms of the current conceptions of

privacy is that they depend upon and serve the concept of privacy as a liberty issue which,
in turn, is conceived of as a form of licence. As such, privacy — in so far as it protects
individual liberties — will continually be in tension with other conflicting liberty interests.
As the history in the U.S. has demonstrated, where privacy competes with other liberties,
privacy often loses. The result is incoherent conceptions ofprivacy which only partly explain
the myriad ofways that privacy presents itself in a modern world. I fthe current conceptions,
or any combination ofthem, are unsatisfying, a different approach to conceptualizing privacy
has been suggested, one that decides privacy on a case-by-case basis. It is to this alternative
approach that I now turn.

B. A Pragmatic Approach to Conceptualizing Privacy

Not surprisingly, Solove accepts that the current conceptions ofprivacy do not work: "The
[current] top-down approach [to conceptualizing privacy] of beginning with an overarching

contain information about the patient revealed by the patient, and information that is acquired and
recorded on behalf of the patient. Of primary signillcance is the fact that the records consist of
information that is highly private and personal to the individual. It is information that goes to the
personal integrity and autonomy of the patient.
Similarly, in Plant.supra note 11, Sopinka J. noted in passing, the underlying values ofdignity, integrity
and autonomy are protected by s. 8 of the Charter.
Dyment, supra note 3 at 428.
Ibid, at 428-30.
 Privacy: A Review and Critique of the Literature

conception ofprivacy designed to apply in all contexts often results in a conception that does
not fit well when applied to the multitude of situations and problems involving privacy."140

Solove contends that privacy problems involve disruptions to certain practices, not
isolated events, and should be seen as a dimension of these practices rather than as a separate
abstract concept.141 He advocates, therefore, a pragmatic approach to privacy which "turns
away from universals and focuses on specific situations.... [We] should act as cartographers,
mapping out the terrain of privacy by examining specific problematic situations rather than
trying to fit each situation into a rigid predefined category."142 Solove summarizes his
position as follows:

A pragmatic approach to the task of conceptualizing privacy should not, therefore, begin by seeking to
illuminate an abstract conception of privacy, but should focus instead on understanding privacy in specific
contextual situations.... Thus, the pragmatist has a unique attitude toward conceptions. Conceptions arc
"working hypotheses." not fixed entities, and must be created from within concrete situations and constantly
tested and shaped through an interaction with concrete situations.... My approach is from the bottom up
rather than the lop down because it conceptualizes privacy within particular contexts rather than in the
abstract.143

To Solove the question is not so much whether privacy exists as it is whether privacy
should be respected. If privacy impacts certain contexts or practices in a negative way, then
for Solove the issue is not the existence of a privacy interest, but whether less privacy is
desirable in that context. If, on the other hand, privacy furthers a desirable practice ("or is so
constitutive of the practice that the practice would be impossible without it"), then privacy
should be recommended.144 It is an approach, therefore, that is less a normative theory of
privacy than it is a sort oflitmus test for whether privacy is or is not engaged. There are two
questions which must be asked in every privacy case. First, is there a privacy interest at
stake? Second, is there a fundamentally important competing right that justifies overriding
the privacy interest in the case? One of the difficulties with Solove's approach is that it tries
to answer both questions simultaneously.

1. Solove's Pragmatic Approach Applied

Solove concludes by considering a few cases using his pragmatic approach.

"° Solove, supra note 26 at 1099. Similarly, he states at 1096:

Although the terminologies theorists employ differ, most theorists strive toward the central goals
of the traditional method of conceptualizing privacy, to locate the "essence" of privacy, the core
common denominator ihul makes things private. The traditional method endeavors to conceptualize
privacy by conslrucling a category that is separate from other conceptual categories (such as
autonomy, freedom, and so on) and that has fixed clear boundaries so we can know when things
fall wilhin the category or outside of it. .
141 Ibid at 1130- "We should conceptualize privacy by focusing on the specilic types of disruption and the
specific practices disrupted rather than looking for the common denominator that links all of them."
142 Ibid, at 1126.
»' Ibid, at 1128-29.
144 Ibid, at 1144.
 Alberta Law Review (2006)43:3

In McNamara v. Freedom Newspapers,145 a newspaper published a photo ofa high school

soccer player's genitalia that he inadvertently exposed while running on the soccer field. The
student sued under the American tort ofpublic disclosure ofprivate facts. The Court held that
the student's case should be dismissed because the "picture accurately depicted a public
event and was published as part of a newspaper article describing the game. At the time the
photograph was taken, [the student] was voluntarily participating in a spectator sport at a
public place."146

The Court based its decision on a conception ofprivacy as concealing private facts.u7 For
Solove. the Court ought to have approached the issue by looking at what social practices
ought to be either protected or prohibited by the privacy claim:

The answer, I believe, is thai social practices have developed to conceal aspects of life that we find animal-
like or disgusting as well as activities in which we feel particularly vulnerable and weak. We scrub, dress,
and groom ourselves in order to present ourselves to the public in a dignified manner. We seek to cover up
smells, discharge, and excretion because we are socialized into viewing them with disgust. We cloak the nude
body in public based on norms oldecorum. These social practices, which relegate these aspects of life to the
private sphere, are deeply connected to human dignity.... [O]ne form oftorture is to dehumanize and degrade
people by making them dirty, stripping them, forcing them to eliminate waste in public, and so on. When
social practices relating to dignity are disrupted, the result can be a severe and sometimes debilitating
humiliation and loss ofself-estccm. Therefore, the fact that the student's genitalia was exposed to the public
may have eliminated its secrecy, hut the injury was not one of lost secrecy. The fact that the exposure
occurred in a public place should have been treated as relatively unimportant.148

Although substantive criticisms ofSolove's approach will be offered below, his reasoning
in this case is suspect on two alternative grounds. On the one hand, Solove's argument
defending the runner's privacy appears to be based on the same current conceptions of
privacy that he rejected earlier. His terminology — dignity and self-esteem — invokes the
same conceptions of privacy which Solove conceded are incoherent. If this is so, then
Solove's defence of privacy must fail for the same criticisms mentioned earlier.

Alternatively, ifprivacy is simply a matter ofcontext, is privacy really engaged here? The
exposure may be embarrassing, and the runner would presumably hope that the newspaper
would not print such a picture simply for its titillating detail, but is it private? What practice
would be disrupted if the picture is printed? Would the picture prevent the runner from
pursuing a path he hopes would define him? Would the runner recoil into his own world,
shunning the possibility ofathletic glory in favour of a seat in the stands? Would he shun all
forms ofexercise or sport, or only those done in public? 1 doubt it, but this assumption belies
a fundamental difficulty with Solove's approach. It re-introduces a form of "intuitive
analysis" back into the argument which, as mentioned previously, is unhelpful.

802 S.W.2d. 901 (Tex. Ct. App. 1991).

Ibid, at 905.
Solove, supra note 26 at 1147: "Since the photograph w as taken outside and in public, the student could
not claim that an image of his exposed genitals was a private matter "
Ibid, at 1148-49 [footnotes omitted].
 Privacy: A Review and Critique of the Literature 583

In Nader v. General Motors Corp.,"* Ralph Nader, an outspoken critic for consumer
safety, had for many years criticized the safety of GM automobiles: "General Motors
interviewed Nader's friends and acquaintances to learn the private details of his life, made
threatening and harassing phone calls, wiretapped his telephone and eavesdropped into his
conversations, hired prostitutes to [attempt to] entrap him into an illicit relationship, and kept
him under pervasive surveillance while outside in public places."150 The Court considered
each of the complaints separately as a privacy complaint. With the exception of the
wiretapping, the Court concluded that no privacy rights were infringed. With regards to the
surveillance, however, the Court concluded that surveillance could be so "overzealous" as
to render it actionable.151

Solove objects to the Court considering the acts in isolation, suggesting that the Court

lost sight of the forest for the trees ["[b]y slicing off parts of the case anil compartmentalizing them into
categories, the Court impeded a jury's ability to consider the lull situation"!.152 the purpose of General
Motors1 plan was to employ its considerable power in a campaign to disrupt Nader's personal affairs. The
Court should have focused on the way in which the company's actions aimed to disrupt Nader's life, and the
paramount social importance of avoiding such exercises of power designed to deter, harass, and discredit
individuals, especially ones who are attempting to raise important social and political issues.

By considering the context of this case, as opposed to the alleged invasions of privacy in
isolation, Solove concludes that the social practices disrupted by the facts of this case —
social and political speech — established a general violation of Nader's privacy. Nothing
more should be required to assert privacy.

With respect, why? With the exception of the wiretapping (which is also illegal), what
privacy interest is engaged? Nader's choices, like those of General Motors, have
consequences: to whom should he divulge intimate details of his life, in what acts or
activities should he engage in public?154 Depending on what use GM could make of any
discreditable conduct that Nader engaged in, there are a number of actionable remedies
available to Nader, without having to resort to privacy. Defamation, extortion, trespass and
nuisance readily come to mind. There are legitimate causes ofaction which exist independent
of privacy. Do we have to torture privacy to get relief, when other recognizable causes of
action exist? By attempting to have privacy be all things to all people, Solove's approach
risks trivializing privacy for everybody.

u* 255 N.E.2d 765 (N.Y. 1970).

150 Solove's summary of the issue, (supra note 26 at 1149).
151 Posncr summarizes surveillance cases as follows: "The common thread running through the cases in
which the courts have held that ostentatious surveillance was tortious is that the surveillance exceeded
what was reasonably necessary to uncover private information and became a method of intimidation,
embarrassment, or distraction" (Posner. supra note 21 at 420). One wonders why privacy is involved
ifthese other recognized causes of actions adequately respond to these situations.
": Solove, supra note 26 at 1151.

>" As Fried states "[olnc does not trust machines or animals; one takes the fullest economically feasible
precautions against their going wrong. Often, however, we choose to trust people where it would be
safer to take precautions - to watch them or require a bond from them" {supra note 26 at 486). If only
it were that simple.
 584 Alberta Law Review (2006) 43:3

2. A Criticism of Solove's Pragmatic Approach

The critics of the prevailing conceptions ofprivacy are correct: they argue, persuasively
in my view, that the other conceptions all attempt to define the fundamental characteristic,
or common denominator, in privacy claims to be the protection of a liberty as a licence
interest. The goal has been, obviously, to attempt to define privacy with sufficient precision
yet retain flexibility to deal with the rapid pace of technology and the implications for
privacy that arise as a result. The consequence, unfortunately, has been conceptions of
privacy that are too broad, too narrow or both.

Accordingly, it is easy to see why Solove's pragmatic approach has appeal. Perhaps no
single conception of privacy is indeed coherent and, therefore, we ought to abandon the
search for the core value of privacy in favour of a pragmatic approach where privacy cases
are considered on a case-by-case basis to be determined in their respective context. That is,
maybe positivism is the answer, at least for privacy,155 because no conception ofprivacy that
assumes an inherent core value is possible:

Runald Dworkin, one of the principal proponents of intrinsic value, argues that certain things "arc valuable
in themselves and notjust for their uti lity or for the pleasure ofsatisfaction they bring us".... However, along
with other scholars, I contend that privacy has an instrumental value—namely, that it is valued as a means
for achieving certain other ends that are valuable.... In contrast to many conceptions of privacy, which
describe the value of privacy in the abstract, I contend that there is no overarching value of privacy.156

1 do not share this view. My view is that the conceptions have thus far simply failed to
identify the common denominator—the hub ofthe privacy wheel, to use Solove's metaphor.
If liberty — or some manifestation thereof— is not the core value ofprivacy, does that mean
that some other intrinsic value at its core does not exist?

Second, although positivism has some intuitive appeal,1571 cannot agree that there is no
conceptual connection between law and morality—that law is simply "morally neutral" and

Solovc. supra note 26. Evidence that Solovc's approach rests upon a positivislic view of the law
include: (at 1126) "pragmatism turns away from universals and focuses on specific situations"; (at 1127)
rejects the notion, at least for privacy, "that there are objective and universal truths lhat exist prior to
and independently of, experience"; (at 1144)"lfprivacy impacts the practice inancgative way then less
privacy would be desirable. If privacy furthers a desirable practice (or is so constitutive ofthe practice
that the practice would be impossible without it), then privacy should be recommended." Quaere- isn't
this a return to the length of the Chancellor's foot?
Ibid.av I US.quotingRonaldOworkinM/esDominion: AnArgumenlAhoutAbortion. Euthanasia and
Individual Freedom (New York: Knopf, 1993) at 69-70 [footnotes omitted].
Sec Brian II. Bix, "Legal Positivism" in Martin P. Golding & William A. Edmundson eds Vie
Blaekwell Guide to the Philosophy ofLaw and Legal Theory (Maiden, Mass.: Blackwcll, 2005) 29 at

(I) it carries the power ofa simple model oflaw (ir, like other simple models orhuman behaviour
it sometimes suffers a stilTcost in distortion); (2) its focus on sanctions, which seems, to some, to
properly emphasize the importance of power and coercion to law; and (3) because it does not
purport to reded the perspective ofa sympathetic participant in the legal system, it does not risk
sliding towards a moral endorsement of the law.
 Privacy: A Review and Critique of the Literature 585

"descriptive"—as positivism attempts to do. If law requires social consensusI5H and depends
only on its source or pedigree for its validity — and as a consequence there are no inherent
or natural rights which exist apart from some external source — then positivism suffers, in
my view, from majoritarianism and intuitionism. Both are unsatisfying from the aspect of
privacy. With regards to the former, one must prevail upon the will of the majority. As
Dworkin has suggested, majoritarianism is not the proper basis for protecting unpopular or
minority interests in a free and democratic society:

Conslilulionalism—Ihc theory that the majority must be restrained to protect individual rights—may be a
good or bad political theory, but the United States has adopted that theory, and to make the majority judge
in its own cause seems inconsistent and unjust. So principles of fairness seem to speak against, not for, the
159
argument from democracy.

Further, having to rely upon judicial activism is also unacceptable. The objections are
threefold. First, pleas for judicial activism similarly rely on the judge's view of societal
values, or of the will of the government if deferring to legislation, which is simply
majoritarianism from a judicial perspective. Second, it would seem likely that an intuitionist
analysis as contemplated by Whitman would creep into judicial activism. Third, if rights do
not exist until recognized by the courts or the legislature, yet judges have discretion where
the "law" is vague, how can people know with certainty what their rights and obligations are
before finding that they have none or, worse, have violated some heretofore unrecognized
duty? Making law, and therefore rights and duties, and applying it retrospectively, is
unacceptable.160

It must be acknowledged, on the other hand, that a rights-based view of the law — with
law and morality conceptually connected — is troublesome for many lawyers and judges:

A great many lawyers are wary oftalking about moral rights, even though they find it easy to talk about what
is right or wrong for government to do. because they suppose that rights, if they exist at all. are spooky sorts
of things that men and women have in much the same way as they have non-spooky things like tonsils. But
the sense of rights I propose to use does not make ontological assumptions of that sort: it simply shows a

Ibid, at 35:
As discussed above, H.L.A. Hart had argued that all (modem or mature) legal systems have
secondary rules—rules about rules, rules that allow for the identification, modification, and
application of "primary rules".... Most significantly within Hart's analysis, legal systems havca
"Rule orRccognition," which comprises the basic criteria oflegal validity within the legal system
in question: the Rule of Recognition "will specify some feature or features possession of which
by a suggested rule is taken as a conclusive affirmative indication that it is a rule of the group to
be supported by the social pressure it exerts." The basic role or nature oflhc Rule of Recognition
is established by the legal system's being a normative system: a structured system of "ought"
statements.... Under Hart's approach, one looks at Ihc behavior of legal officials (especially
judges) to determine what the ultimate criteria of validity are. (The sovereign plays a similar role
in Austin's command theory. All the valid norms in the legal system, according to this approach,
can be traced back to a direct or indirect command by the sovereign (indirect commands include
the sovereign's authorization that judges can make new law in the sovereign's name).)
Dworkin, supra note 25 at 142.
Ibid; sec generally c. 3.
 586 Albi-rta Law Review (2006) 43:3

claim of right to be a special, in the sense of a restricted, sort ofjudgment about what is right or wrong for
governments to do.161

Spooky though they may be, for rights to have substance, they must be inherent or natural
and not dependent upon some external source: "It must be a theory that is based on the
concepts of rights that are natural, in the sense that they are not the product of any
legislation, or convention, or hypothetical contract";162 they are not "[gifts from] God, or an
ancient ritual, or a national sport."163

If privacy is not inherent to individuals, and there are no privacy principles perse, then
any developments in privacy require legislative decree. Our quest becomes simply to
champion legislative reform to address particular contexts where privacy interests are at
issue. We become beholden to political will and judicial discretion.164 Solove subscribes to
this position with his contention that privacy has no inherent value on its own, only an
instrumental value, namely, "that it is valued as a means for achieving certain other ends that
are valuable."165 For those who subscribe to Dworkin's view that rights are inherent, Solove's
pragmatic approach is unsatisfying. Further, that privacy is not a "right" seems contradictory
to most jurisprudence which recognizes privacy — in some form or another — as a
fundamental right worthy of constitutional protection.

V. Conclusion

Privacy law finds itself in a most distressing state. Inconsistency and conflict are evident
in both the jurisprudence and the literature on privacy. At first glance, this unhappy state of
affairs appears to arrive from a lack of consensus on the core liberty or liberties that privacy
strives to protect. If we want to protect privacy, so the argument goes, then we have to
ground it in something other than an inchoate, inarticulate right. We have to discover, the
argument continues, the fundamental kinds ofactivities which people would invariably point
to as requiring privacy. This approach forces privacy discourse into a debate about which
liberty interests — or action verbs — are deserving of protection. The current conceptions
of privacy do just that. In doing so, however, the conceptions are invariably too broad or too
narrow and fail to explain the place of privacy in the modern world. They offer an intuitive
approach of what makes things "private" and falter when intuitive commonality does not
exist.

The difficulties with the current approach lie much deeper than simply trying to identify
those things that ought to be private. Exposed is a fundamental failure in the discourse to
distinguish between the concept of privacy and any particular conception of privacy based
upon that concept. The inadequacy of the prevailing conceptions ofprivacy is that they are

Ibid at 139.
Ibid, at 176 [emphasis in original).
ibid, at 198.
An approach rejected by Ronald Dwnrkin when discussing constitutional debate in "Uneniimcratcd
Rights: Whether and How Roe Should be Overruled" (1992) 59 U. Chi. L. Rev. 381 at 393: "Nor should
we waste any more time on the silly indulgence of American legal academic life: the philosophically
juvenile claim that, since no such formula exists [for explaining "bad" constitutional decisions], no one
conception of constitutional equality and liberty is any better than another, and adjudication is only
power or visceral response."
Solove, supra note 26 at 1145.
 Privacy: A Review and Critique of the Literature 587

all based on an underlying concept of privacy that is flawed. While a more abstract concept
of privacy — that there is certain information about ourselves that is not open for public
consumption—remains incontestable, the standing conceptions ofprivacy suggest that there
are certain activities in which we engage that are not open for public consumption. So
conceptualized, individuals are, or should be, free to do according to their own lights. As
conceived, then, the prevailing concept of privacy is of privacy as liberty. The prevailing
conceptions of this concept of privacy are simply arguments about what activities ought to
be private — abortions, possession of pornography or unpopular material, associations with
unpopular groups: the list could go on ad infmitum. Privacy, so conceived, finds itself
continually at odds with both state and other individual interests. This is a conflict that
privacy usually loses and leaves one with the impression that privacy is not that valuable as
a right.

Is it possible to conceptualize privacy in such a fashion that "true" privacy claims do not
compete? I contend that it is indeed possible, but doing so requires us to take a step back and
rethink our concept of privacy. It is time to get off the merry-go-round that marks the current
privacy discourse which has seemingly accepted, without debate, that privacy is a liberty
issue. With the difficulties exposed, I contend that it may be an appropriate time to consider
changing the present paradigm against which privacy is evaluated. Perhaps privacy is better
served if conceived of as an equality issue, not a liberty issue. Perhaps at its core privacy
protects and ensures equality in the sense that we are entitled to equal concern and respect
as individuals, and not that we are entitled to do as we please. Such an approach would shift
away from viewing privacy as a prerequisite for preventing invasions of various liberty
interests to one ofmaintaining conditions that will make the exercise ofthose liberty interests
possible. So conceptualized, equality would be at the hub and the various liberty interests
protected by privacy are simply spokes on the privacy wheel.

Admittedly, one would have to have a myopic view of the jurisprudence and scholarly
literature to suggest that anything other than the prevailing conceptions of privacy have
formed the basis for decision and argument. Nevertheless, one can clearly see the rudiments
of such a paradigm shift beginning to take shape at least in Canada. Although often using
"liberty" vernacular, there has been a sprinkling throughout some of the Charter
jurisprudence which considers privacy issues to suggest that the overriding concern has been
whether individual equality rights are harmed by an invasion of privacy, not whether any
particular liberty interest is denied."''1

For example, in O'Connor, supra note 130 at 488-89, L'Heureux-Dube J. stated:

As I noted in Osolin. uninhibited disclosure of complainants' private lives indulges the
discriminatory suspicion that women and children's reports of sexual victimization are uniquely
likely to be fabricated. Put another way, if there were an explicit requirement in the Code
requiring corroboration before women or children could bring sexual assault charges, such a
provision would raise serious concerns under s. 15 of the Charter. In my view, a legal system
which devalues the evidence of complainants to sexual assault by de facto presuming their
uncreditworthiness would raise similarconcems. It would not reflect, far less promote, "a society
in which all are secure in the knowledge that they are recognized at law as human beings equally
deserving of concern, respect and consideration" [citations omitted, emphasis in original!.
Justice L'l leureux-Dubc subsequently completed (at 490) the connection between privacy and equality:
All of these factors, in my mind, justify concluding not only that a privacy analysis creates a
presumption against ordering production of private records, but also that ample and meaningful
consideration must be given to complainants' equality rights under the Charter when formulating
an appropriate approach to the production of complainants' records. Consequently, I have great
588 Alberta Law Review (2006)43:3

A concept ofprivacy as equality has tremendous appeal. Whereas liberty issues will often
compete, the more fundamental right—equality — is not in conflict. Indeed, it is something
of a non sequitur to suggest competing equality interests. How can two individuals be
afforded equal concern and respect if one's equality must take preference over another's?
Accepting privacy as an equality issue, one would then be in a position to articulate a
particular conception of privacy which would determine when equality, and therefore
privacy, is engaged."'7

A likely consequence of adopting a different paradigm to privacy as equality may be to

restrict privacy. But privacy cannot be all things to all lawyers. As stated over 100 years ago
by the "founders" of the privacy right in the U.S.:

That the individual shall have full protection in person and in property is a principle as old as the common
law; but it has been found necessary from time to time to define anew the exact nature and extent of such
protection. Political, social, and economic changes entail the recognition ofnew rights, and the common law,
in its eternal youth, grows to meet the demands of society.168

Perhaps, given the difficulties exposed in privacy law today, it is time again to consider anew
how privacy is conceived. By limiting the ambit of privacy, we may indeed strengthen it.

sympathy for the observation of Hill J. in R. v. Barbosa to this effect (at 141):
In addressing the disclosure of records, relating to past treatment, analysis, assessment or
care of a complainant, it is necessary to remember that the pursuit of full answer and
defence on behalf of an accused person should be achieved without indiscriminately or
arbitrarily eradicating the privacy of the complainant. Systemic revictimization of a
complainantfosters disreputefor the criminaljustice system (citation omitted, emphasis
in original).
Similarly, McLachlin J. (as she then was) emphasized in Ryan, supra note 131 at 175-76, the connection
between privacy and equality as a result of an unreasonable disclosure of personal information of a
victim of sexual assault:
As noted, the common law must develop in a way that reflects emerging Charier values. It follows
that the factors balanced under the fourth part ofthe test for privilege should be updated to reflect
relevant Charier values. One such value is die interest affirmed by s. 8 of the Charier of each
person in privacy. Another is the right of every person embodied in s. 15 ofthe Charter to equal
treatment and benefit of the law. A rule of privilege which fails to protect confidential
doctor/patient communications in the context ofan action arising out ofsexual assault perpetuates
the disadvantage felt by victims of sexual assault, often women. The intimate nature of sexual
assault heightens the privacy concerns of the victim and may increase, ifautomatic disclosure is
the rule, the difficulty of obtaining redress for the wrong. The victim of a sexual assault is thus
placed in a disadvantaged position as compared with the victim of a different wrong. The result
may be that the victim of sexual assault does not obtain the equal benefit of the law to which s.
1S of the Charter entitles her. She is doubly victimized, initially by the sexual assault and later
by the price she must pay to claim redress— redress which in some cases may be part of her
program of therapy. These are factors which may properly be considered in determining the
interests served by an order for protection from disclosure of confidential patient-psychiatrist
communications in sexual assault cases.
I will make such an attempt in a subsequent essay, where I will draw on equality and human rights
jurisprudence to suggest that the potential for discrimination in the sense of stereotyping, historical
disadvantage, and vulnerability to political and social prejudice would invariably violate an individual's
right to equal concern and respect under any reasonable conception ofequality. Therefore, where there
is the potential for discrimination, privacy will be triggered. This, in my view, is why we need
privacy—not to protect any particular activity or liberty as license, but to safeguard our equality.
Without equality, meaningful liberty is illusory.
Warren & Brandeis. supra nole 27 at 193.