The Right to Privacy 1914–1948

Megan Richardson is a Professor in the Melbourne Law School at the University of Melbourne and author of The Right to Privacy: Origins and Influence of a Nineteenth-Century Idea (Cambridge University Press, 2017) and Advanced Introduction to Privacy Law (Edward Elgar, 2020).

Chapter 1:In 1905 Spanish philosopher and cultural critic George Santayana wrote that "those who cannot remember the past are doomed to repeat it". Ten years later the world was at war. The right to privacy featured in art 12 of the Declaration, alongside rights to family, home and correspondence, and to honour and reputation. But, due to its attenuated framing and limited attention paid to more contestable ideas about what a modern right to privacy might encompass, alongside other rights needed for the protection of identity in modern life, it amounted largely to a restatement - albeit a highly significant restatement - of the importance of the right to privacy in modern times. Instead, most of the modern developments around the right to privacy and contiguous rights have occurred spasmodically in the years since the Universal Declaration was agreed in a rare moment of international consensus.
Chapter 2:By the late nineteenth century, the idea of a right to "the sacred precincts of private and domestic life", as Samuel Warren and Lpuis Brandeis described it in the 1890 Harvard Law Review, drew on a tradition of a distinct private life enjoyed away from public view even as this was being disrupted by modern media practices and media technologies. Under the intensely crowded and transitory conditions of modern life, the question was whether privacy could still be enjoyed in the face of their incursions. In the 1940s, Hannah Arendt coming out of a period of restless refugeeism foreshadowed a more modern understanding of privacy in her characterisation of private life as an amorphous sphere of difference and differentiation under which, "through friendship, sympathy and love, we can cope more or less adequately with mere human existence". However, this intriguing idea received little acknowledgment in conservative courts of the mid-twentieth century, such as the Australian High Court in Victoria Park Racing & Recreation Grounds Co Ltd v Taylor in 1937, where even Evatt J in dissent suggested that privacy of a race ground subject to a radio broadcast from a viewing platform on a neighbour's property came down largely to the ability to keep separate from public view the races and spectators on the ground. Nor was it clearly reflected in the right to privacy ("la vie privée" in the French version) in art 12 of the Universal Declaration in 1948, or the right to private life in the European Convention on Human Rights in 1950. Moreover, Arendt herself seemed to have abandoned it her later writings advocating for public life. But now, with experience of the internet and social media, we start to see her earlier conception being developed in certain current understanding of privacy as highly social, even political, and enjoyed often in quite public settings.
Chapter 3:Also noteworthy is the Universal Declaration's failure to specify a right to data protection alongside the right to privacy and contiguous rights in art 12, and narrow rejection of a proposal to include a right to "free development of personality" in the broader right to liberty in art 3. Nevertheless, the right to free development of personality was provided for in art 2 of the 1949 West German Basic Law, and this (along with the right to dignity in art 1) became a basis for the West German Constitutional Court to construct a right to "informational self-determination" in the Census Act case of 1983, with the latter further refracted into the right to data protection in the EU Charter of Fundamental Rights in 2000. With the right to data protection (or "data privacy") now receiving wide recognition, more attention could be paid to its intellectual origins. One useful reference point is German sociologist Max Weber's vision of an ideal bureaucracy in Economy and Society (1920). But there were others as well who were thinking about bureaucracy in the 1910s and 20s, including cultural sociologist Alfred Weber (Weber's brother), and absurdist author Franz Kafka who gave us imaginative accounts of the vicissitudes of bureaucracy run amok (his "terror" accurately describing, Arendt said, "the true nature of the thing called bureaucracy"), and in his office writings provided insights into his own ideas about ideal bureaucracy gleaned from his work at the Workman's Accident Insurance Institute in Prague. Indeed, the right not to be subject to automated decision-making in art 22 of the EU General Data Protection Regulation 2016 may be viewed as a distinctly Kafkian right.
Chapter 4:A foreshadowing of what is now known (but patchily recognised) as the "right to be forgotten" can be found in the writings of French philosopher Henri Bergson, contemporary of Freud in Germany but very different in his views on human identity and memory. In Creative Evolution (1907), Bergson observed that "[m]emory ... is not a faculty of putting away recollections in a drawer, or of inscribing them in a register. There is no register, no drawer: there is not even, properly speaking, a faculty, for a faculty works intermittently, when it will or when it can, whilst the piling up of the past upon the past goes on without relaxation", following us throughout our lives, and condensing itself into what we think of as "our character". Freud's and Bergson's ideas about memory inspired the surrealists who, in a curious inversion, opened their "Bureau for Surrealist Research" in Paris in October 1924, with the aim of "gather[ing] all the information possible related to forms that might express the unconscious activity of the mind" and "create[ing] genuine surrealist archives". And we can see traces of Bergson in the case of Melvin v Reid (1931) where a California court, drawing on the right to happiness in the state constitution (along with Warren and Brandeis's arguments for a right to privacy) radically identified a right to return to "privacy" for a former prostitute now leading a respectable life who found herself the unwilling star of Dorothy Davenport Reid's film about the perils of prostitution. His ideas found less support in the Universal Declaration, with its proto-Foucauldian, post-Nuremberg mantra of "freedom of speech and belief" as "the highest aspiration of the common people". But his thinking about creative self-fashioning takes on new significance in an internet world which challenges forgetting and problematises distinctions between true and false, rational and irrational, free and determined - among other things, speaking to current debates about unwanted remembering and recounting of potentially incriminating time-sensitive personal data.
Chapter 5:The rights whose histories and contours are mapped in this book share the distinctive character of being rights (more or less) about human identity. And a question for the future is, not only how these rights will continue to develop (and whether their development will follow increasingly diverse trajectories), but what new rights may emerge in the broader ongoing effort to secure and support our identities as humans in an increasingly mechanical and mechanised world - freeing us individually and collectively to take the necessary step of creating and presenting ourselves on our own Bergsonian terms in the digital century.