What is Privacy?

In both the East and the West, the word "privacy" is often discussed with a vague understanding.

So, let's take a moment to think about what privacy is.

1. The origin of the word privacy

According to the Online Etymology Dictionary, privacy is a word that appeared in the 15th century and is composed of private + -cy. "-cy" is a suffix that turns a stem into a noun. In other words, privacy is the noun form of "private."

"Private" is a word that appeared in the second half of the 14th century, and comes from the Latin word "privatus" (separated from others and belonging to oneself, as opposed to "publicus" or "communis"). In other words, it means that one can decide for oneself alone, so "privacy" means "things that can be self-determined," such as oneself and one's possessions. Therefore, considering the etymology, it is not far off the mark to think of the right to privacy as the "right to self-determination."

2. The right to privacy in legal literature^[1]

On the other hand, among legal professionals, the right to privacy is often referred to as the "right to be left alone." This term is probably famous because it was quoted from Justice Cooley's book "The Law of Violation" [2] in the famous essay "The Right to Privacy" [3] by Warren & Brandeis. However, I think the Japanese translation of this term "the right to be left alone" is a bit misleading. Let's look at Justice Cooley's definition.

 Personal immunity. The right to one's person may be said to be a right of complete immunity: to be let alone. The corresponding duty is, not to inflict an injury, and not, within such proximity as might render it successful, to attempt the infliction of an injury. In this particular the duty goes beyond what is required in most cases; for usually an unexecuted purpose or an unsuccessful attempt is not noticed. But the attempt to commit a battery involves many elements of injury not always present in breaches of duty; it usually involves an insult, a putting in fear, a sudden call upon the energies for prompt and effective resistance. There is very likely a shock to the nerves, and the peace and quiet of the individual is disturbed for a period of greater or less duration. There is consequently abundant reason in support of the rule of law which makes the assault a legal wrong, even though no battery takes place. Indeed, in this case the law goes still further and makes the attempted blow a criminal offense also. [4]

In other words, the "right to be let alone" is written as an explanation of the "right to complete personal immunity". Meanwhile, the corresponding "duty" means not to commit acts that infringe or may infringe on the rights of others (torts). If you read the explanation that follows, you will see that the "individual" includes not only the body but also the mind. In other words, the "right to be let alone" means "the inviolable right of the individual's physical and mental freedom", which is far removed from the impression that ordinary people have of the Japanese phrase "right to be let alone".

Warren & Brandeis also sees the right to privacy as a fundamental right, the freedom to make one's own decisions, and that freedom of speech and expression is derived from the right to privacy.[6] This is also followed by the "Privacy Bill of Rights"[7] announced by President Obama in XNUMX. I feel that it is not far off the mark to say that the right to privacy is a right to "freedom."

In addition, Warren & Brandeis subsequently went on to discuss the differences between property rights and copyrights, between defamation and libel, why the violation of privacy rights does not require intent or negligence, and in what cases there are limitations.[8] It is a short paper, so I highly recommend reading it. Online,MIT websiteYou can read it at

3. Conclusion

So, whether we trace it back from the etymology or from legal documents, we get the same result.The right to privacy is the right to self-determination regarding the possession, use, disclosure, and disposal of one's own body, property, and thoughts., or to put it more simply,Sovereignty of the self over itself, i.e.Human right to freedomHowever, many of these aspects can be dealt with under other laws, and to that extent they should be dealt with under those individual laws. It seems to me that the part that remains after removing these aspects is what is called the right to privacy in the narrow sense. I think that this positioning of "the remaining part" is one of the reasons why privacy in the narrow sense is difficult to understand. If we make it into a diagram, it looks something like this. Although it is not included in the diagram, in Europe,"European Convention on Human Rights"Article 8 adds the "right to respect for private and family life" (← in Japan, this is sometimes called privacy, but as mentioned above, I think this is a right that is included in the right to privacy).

One of the major rights remaining in this "right to privacy in the narrow sense" is the so-called "right to control one's own information," and I think that the right to control one's own information or the right to form one's self-image is often spoken of as the right to privacy. Also, because of this, some people say that "(protecting privacy is natural) there is no need to enact laws to protect privacy." Privacy is not explicitly addressed in Japan either, but the Supreme Court ruling on September 15, 9 in the Waseda University Jiang Zemin case stated that "it is natural to think that you do not want your information to be made public by people you do not want to be made public, and this expectation should be protected," so it is considered a good thing that it is essentially protected. However, on the other hand, I think that it would be better to cover it in an explicit manner that is as easy to understand as possible and serves as a concrete guide to action, which would reduce cases of infringement. In particular, in many cases, even if a lawsuit is won, the state of human relationships and other conditions will not return to the way they were, so it is, so to speak, "too late," so I think it makes sense to enact a law in a way that is easy for everyone to understand.

On the other hand, the protection of personal information, which is often spoken of in contrast to this, is merely one of the means to protect the right to privacy. It is not the essence of this. What needs to be protected is privacy, not personal information. I think that this point should not be overlooked.

 

[1] I’m not a legal expert, so I’m not sure if I should be referring to legal literature, but I can’t help but mention it…

[2] Warren and Brandeis, “The Right to Privacy”, Harvard Law Review, Vol. IV December 15, 1890 No. 5 (The Japanese spelling was originally Waren, but it seems that Waren is more common in Japan. Pronounced, I think it is somewhere between Waren and Waren.)

[3] Thomas McIntyre Cooley, “Law of Torts”, Callaghan, 1888

[4] http://www.law.louisville.edu/library/collections/brandeis/node/227 Transcribed from. Underlining added by the author.

[5] Immunity = non-invasion, non-interference, etc., which is difficult to translate into Japanese. Since Diplomatic Immunity is diplomatic immunity, Complete Personal Immunity is complete personal immunity, i.e. freedom.

[6] “These considerations lead to the conclusion that the protection 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.”

[7] Consumer Privacy Bill of Rights (http://1.usa.gov/privrights )

[8] Incidentally, the idea that equality means equal restrictions on freedom, or the amount of concessions, is also mentioned in Enjolras' speech in Les Miserables. Liberty, society, equality, fraternity.See this article.