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Bygrave, Lee A --- "The Place of Privacy in Data Protection Law" [2001] UNSWLawJl 6; (2001) 24(1) UNSW Law Journal 277

[*] BA (Hons), LLB (Hons) (ANU); Dr juris/ LLD (Oslo); Senior Research Fellow, Norwegian Research Centre for Computers and Law, University of Oslo; Barrister of the Supreme Court of New South Wales.

[1] Although this will be obvious for many readers, ‘data protection law’ denotes a set of rules which specifically regulate all or most stages in the processing of ‘personal information’ – ie, information relating to, and permitting identification of, individual persons (and sometimes organisations) – and which embody the bulk of principles laid down in recognised data protection instruments, such as the Organisation for Economic Co-operation and Development Guidelines Governing the Protection of Privacy and Transborder Flows of Personal Data (1980). For an overview of these principles see Lee A Bygrave, ‘An international data protection stocktake @ 2000: Core principles of data protection’ Pt 2 (2001) 7 Privacy Law and Policy Reporter 169.

[2] See, eg, Privacy Act 1988 (Cth) ss 13, 13A.

[3] Paul Abraham Freund, ‘Privacy: One Concept or Many’ in J Roland Pennock and John W Chapman (eds), Privacy: Nomos XIII (1971) 182, 193.

[4] Such criticisms are advanced in, eg, Judith Jarvis Thomson, ‘The Right to Privacy’ (1975) 4 Philosophy and Public Affairs 295.

[5] For an overview of the lines of debate, see generally Julie C Inness, Privacy, Intimacy, and Isolation (1992) ch 2.

[6] See, eg, the definitions advanced in: Private Word – News from the Office of the [New Zealand] Privacy Commissioner No 4, April 1996, 6; Ragnar Dag Blekeli, ‘Framework for the Analysis of Privacy and Information Systems’ in Jon Bing and Knut S Selmer (eds), A Decade of Computers and Law (1980) 21, 24; United Kingdom, Committee on Data Processing, Report of the Committee on Data Protection (Cmnd 7341, 1978) 10, [2.04]; Stefano Rodotà, ‘Protecting Informational Privacy: Trends and Problems’ in Willem F Korthals Altes et al (eds), Information Law Towards the 21st Century (1992) 261.

[7] Alan F Westin, Privacy and Freedom (1970) 7.

[8] See, eg, Privacy Act 1988 (Cth) sch 3, National Privacy Principles 1.3, 2.1(b) and 6.

[9] See, eg, Raymond Wacks, ‘The Poverty of Privacy’ (1980) 96 Law Quarterly Review 73, 78 ff; H Gross, ‘Privacy and Autonomy’ in J Roland Pennock and John W Chapman (eds), Privacy: Nomos XIII (1971) 169, 180-1.

[10] Samuel D Warren and Louis D Brandeis, ‘The Right to Privacy’ (1890-91) 4 Harvard Law Review 193, 195.

[11] Ruth Gavison, ‘Privacy and the Limits of Law’ (1980) 89 Yale Law Journal 421, 428-36. In my opinion, this conception of privacy comes closest to capturing the core of the concept at the same time as it does relatively large justice to the concept’s multidimensionality.

[12] See, eg, Privacy Act 1988 (Cth) sch 3, National Privacy Principles 1.1, 1.2, 2.1, 4 and 8.

[13] See, eg, Privacy Act 1988 (Cth) sch 3, National Privacy Principle 3.

[14] Inness, above n 5, 140.

[15] Ibid 58 ff.

[16] Hence Inness, who champions an intimacy-oriented definition of privacy, claims it is misconceived to characterise data protection laws as concerned with privacy. In her view, it is better to characterise such laws as protecting ‘secrecy’: ibid 60-1.

[17] See, eg, Privacy Act 1988 (Cth) sch 3, National Privacy Principle 10.

[18] Westin, above n 7, 39.

[19] See Lee A Bygrave, Data Protection Law: Approaching Its Rationale, Logic and Limits (1999) [7.2.2], [7.2.5].

[20] For an elaboration of these interests, see ibid [7.2.5].

[21] See James Rule et al, The Politics of Privacy: Planning for Personal Data Systems as Powerful Technologies (1980) 71 ff.

[22] See, eg, Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, art 15 (which deals innovatively with certain types of fully automated decision-making).

[23] For examples, see Bygrave, above n 19, [7.2.4].

[24] See Priscilla M Regan, Legislating Privacy: Technology, Social Values, and Public Policy (1995) chh 2, 8. Regan’s analysis deals primarily with US discourse but is also valid for privacy discourse in other countries, such as Australia.

[25] Typical criticisms of privacy rights are that they entrench social hierarchies, promote insularity and intolerance, and permit deception and hypocrisy to flourish. See, eg, Koen Raes, ‘The Privacy of Technology and the Technology of Privacy: The Rise of Privatism and the Deprivation of Public Culture’ in András Sajó and Ferenc B Petrik (eds), High-Technology and Law: A Critical Approach (1989) 73; Richard A Posner, ‘The Right to Privacy’ (1978) 12 Georgia Law Review 393. While some of these criticisms have a limited validity, they are frequently advanced in an overly blunt and simplistic manner. Concomitantly, they often fail to take adequately into account the fact that privacy rights co-exist with, and are balanced and modified by, a range of other rules, and that it is the function of privacy rights in the overall scheme of a legal system which is crucial to any assessment of their effects.