The right to privacy: appealing, but flawed

Abstract

The right to privacy is not recognised at common law. However, like many other rights, it has gained increasing prominence and legal recognition since the explosion in rights-based normative discourse following the Second World War. Rights-based moral theories are appealing because their language is individualising; promising to expand the sphere of liberty and protection offered to people. It is therefore not surprising that we as individuals are attracted to such theories – they allow us a vehicle through which we can project our wishes and demands onto the community. While in abstract the right to privacy sounds appealing, it has many potential disadvantages. This article examines the justification for the right to privacy. It argues that either the right is illusory (devoid of an overarching doctrinal rationale) or at its highest the right to privacy is an insignificant right – one which should rarely trump other interests. It follows that there is a need to re-assess the desirability of introducing a separate cause of action protecting privacy interests.

Notes

The right to privacy is expressly recognised in the Universal Declaration of Human Rights (Article 12), the International Covenant on Civil and Political Rights (Article 17), and the European Convention on Human Rights (Article 8). In the past two decades, the legal recognition of privacy has been the subject of major enquiries by the Australian Law Reform Commission and the United Kingdom Home Office: see Australian Law Reform Commission Report No.22, Privacy, (1983) and United Kingdom Home Office, Report of the Committee on Privacy and Related Matters (1990). The report of the Australian Law Reform Commission led to the enactment of the Privacy Act 1988 (Cth) to regulate the collection, use and disclosure of personal information by Commonwealth public sector agencies. More recently, discussion and further law reform have been stimulated by Council Directive 95/46 of the European Parliament and of the Council on the Protection of Individuals with Regard to the Protection of Individuals with Regard to the Processing of Personal Data and on the Movement of Such Data (‘the EU Privacy Directive’). The Directive mandates minimum legal standards of protection for personal information for all member States of the European Union. It also prohibits the transfer of personal information to States outside the EU unless the laws of the State provide adequate protection. The Directive provided at least part of the impetus for the passage in 2000 of legislation to amend the Privacy Act 1988 (Cth). The amendments introduce a legislative scheme for the regulation of the handling of personal information by private sector businesses. The perceived threat to the privacy of personal information posed by the new information technologies has also been a major contributing factor to an upsurge of interest in the subject of privacy: see for example, J. Kang, ‘Information Privacy in Cyberspace Transactions’ Stanford Law Review, Vol.50. (1998), p.1193; M. Paterson ‘Privacy Protection in Australia: The Need for an Effective Private-Sector Regime’, Federal Law Review, Vol.26 (1998), p.37, and A.M. Froomkin, ‘The Death of Privacy’, Stanford Law Review, Vol.52 (2000), p.1461. In the United Kingdom, the passage of the Human Rights Act 1998 has prompted a fresh examination of the status of privacy interests in the common law in the context of the legal treatment of privacy in other EU member States: see for example B. Markensis, ‘Privacy, Freedom of Expression, and Horizontal Effect of the Human Rights Bill: Lessons from Germany’, LQR, Vol.115 (1999), p.47; B. Markensis (ed.), Protecting Privacy (Oxford: Oxford University Press, 1999), and I. Hare, ‘Verticality Challenged: Private Parties, Privacy and the Human Rights Act’, EHRLR, Vol.5 (2001), p.526.

See B.R. Ruiz, Privacy in Telecommunications: A European and an American Approach (The Hague and Boston: Kluwer Law International, 1997), p.45 suggesting that the increasing importance attached to privacy may be attributed to the growth of mass pluralistic societies, and the perceived threats to privacy posed by modern technology.

G. Taylor, ‘Why is There No Common Law Right of Privacy?’, MULR, Vol.26 (2002), p.235.

Victorian Law Reform Commission, Workplace Privacy: Issues Paper (2002).

Victorian Law Reform Commission, Workplace Privacy: Issues Paper (2002), p.7.

Victorian Law Reform Commission, Workplace Privacy: Issues Paper (2002), p.7, p.19.

Victorian Law Reform Commission, Workplace Privacy: Issues Paper (2002), p.7, p.19, p.18.

U.S. Congress, Office of Technology Assessment, ‘The Problem of Definition – Privacy and Confidentiality’ Protecting Privacy in Computerized Medical Information (OTA-TCT-576 (Washington, DC: U.S. Government Printing Office, September 1993) accessed at http://www.csu.edu.au/learning/ncgr/gpi/odyssey/privacy/ota_pc.html (footnotes omitted) (emphasis added).

Until recently this was also the accepted position under the English common law. However, the coming into force of the Human Rights Act 1998 may in the future lead the English courts to develop a free-standing privacy tort distinct from the action in breach of confidence. In the United States the tort of invasion of privacy consists of four separate branches: unreasonable intrusion upon the seclusion of another; unreasonable publicity given to another's private life; appropriation of another's name or likeness; and publicity that unreasonably places another in a false light before the public. See Restatement (Second) of Torts § 652B-E.

For a more detailed discussion, see Taylor (note 3) pp.240–47, O Akindemowo, Information Technology Law in Australia (Sydney: LBC Information Services, 1999), pp.250–57. It should be noted that privacy interests may in some circumstances be protected under the law of copyright by conferring reproduction and publication rights on the author of unpublished letters and diaries.

See for example Prince Albert v Strange (1849) 1 H and TW 1; 47 ER 1302; Argyll v Argyll [1967] 1 Ch 302; Pollard v Photographic Company (1888) 40 Ch D 345; Stephens v Avery [1988] Ch 449. For a discussion of these cases and the protection of privacy interests under breach of confidence, see M. Richardson, ‘Breach of Confidence: Surreptitiously Obtained Information and Privacy: Theory versus Law’ MULR, Vol.19 (1994) p.673.

For a detailed analysis of this development in the doctrine of confidence see A. McRobert, ‘Breach of Confidence: Revisiting the Protection of Surreptitiously Obtained Information’, AIPJ, Vol.13 (2002), p.69.

[2001] QB 967 (‘Douglas’).

[2001] QB 967 (‘Douglas’)., p.988. See also Sedley LJ, 1001 and Keene LJ, pp.1011–12.

[2001] QB 967 (‘Douglas’)., p.988. See also Sedley LJ, 1001 and Keene LJ, pp.1011–12, p.1001.

[2001] QB 967 (‘Douglas’)., p.988. See also Sedley LJ, 1001 and Keene LJ, pp.1011–12, p.1001. (emphasis added).

[2001] QB 967 (‘Douglas’)., p.988. See also Sedley LJ, 1001 and Keene LJ, pp.1011–12, p.1001. (emphasis added), p.1012.

[2001] QB 967 (‘Douglas’)., p.988. See also Sedley LJ, 1001 and Keene LJ, pp.1011–12, p.1001. (emphasis added), p.1012, p.995.

[2001] QB 967 (‘Douglas’)., p.988. See also Sedley LJ, 1001 and Keene LJ, pp.1011–12, p.1001. (emphasis added), p.1012, p.995, p.1005.

[2001] QB 967 (‘Douglas’)., p.988. See also Sedley LJ, 1001 and Keene LJ, pp.1011–12, p.1001. (emphasis added), p.1012, p.995, p.1005, p.1001.

[2001] QB 967 (‘Douglas’)., p.988. See also Sedley LJ, 1001 and Keene LJ, pp.1011–12, p.1001. (emphasis added), p.1012, p.995, p.1005, p.1001, pp.1012–13.

Since this paper was accepted for publication, the trial of the action has taken place, and judgement given in favour of the plantiffs in Douglas v Hello! Ltd [2003] EWHC 786. Lindsay J held that the photographs constituted valuable commercial information and private information and was protected by breach of confidence under both guises.

[2001] HCA 63 (15 November 2001) (‘Lenah’). The decision was handed down before the Court of Appeal decision in Douglas.

For detailed analysis of the judgments on this issue see W. Heath, ‘Possum Processing, Picture Pilfering, Publication and Privacy: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd’, Monash University Law Review, Vol.28 (2002), p.162; and F Trindade, ‘Possums, Privacy and the Implied Freedom of Communication’ Torts Law Journal, Vol.10 (2002), p.119.

Lenah, [2001] HCA 63, paras 107–11.

Lenah, [2001] HCA 63, paras 107–11, para 187.

Lenah, [2001] HCA 63, paras 107–11, para 187, paras 314–20.

(1937) 58 CLR 479; [1937] ALR 597.

Lenah, [2001] HCA 63, para 34.

Lenah, [2001] HCA 63, para 34.

Lenah, [2001] HCA 63, para 34, para 25.

Lenah, [2001] HCA 63, para 34, para 25, paras 42–3.

Lenah, [2001] HCA 63, para 34, para 25, paras 42–3, para 42.

Lenah, [2001] HCA 63, para 34, para 25, paras 42–3, para 42, para 41.

Lenah, [2001] HCA 63, para 34, para 25, paras 42–3, para 42, para 41, para 43.

Lenah, [2001] HCA 63, para 34, para 25, paras 42–3, para 42, para 41, para 43. Arguably not merely incongruous but impossible: In Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 a majority of the High Court held that the privilege against self-incrimination is a human right protecting the dignity of the accused. However, given the qualitative differences between individuals and corporations it was held that corporations do not have dignity and hence the privilege does not extend to corporations.

Lenah [2001] HCA 63, para 189. His Honour was able to do so because he had reached the conclusion that an interlocutory injunction could be granted in the absence of an underlying cause of action.

Lenah [2001] HCA 63, para 189. His Honour was able to do so because he had reached the conclusion that an interlocutory injunction could be granted in the absence of an underlying cause of action, para 190.

Lenah [2001] HCA 63, para 189. His Honour was able to do so because he had reached the conclusion that an interlocutory injunction could be granted in the absence of an underlying cause of action, para 190, paras 36–7.

Lenah [2001] HCA 63, para 189. His Honour was able to do so because he had reached the conclusion that an interlocutory injunction could be granted in the absence of an underlying cause of action, para 190, paras 36–7, paras 37–8.

Lenah [2001] HCA 63, para 189. His Honour was able to do so because he had reached the conclusion that an interlocutory injunction could be granted in the absence of an underlying cause of action, para 190, paras 36–7, paras 37–8, para 132.

Lenah [2001] HCA 63, para 189. His Honour was able to do so because he had reached the conclusion that an interlocutory injunction could be granted in the absence of an underlying cause of action, para 190, paras 36–7, paras 37–8, para 132, para 335.

Lenah [2001] HCA 63, para 189. His Honour was able to do so because he had reached the conclusion that an interlocutory injunction could be granted in the absence of an underlying cause of action, para 190, paras 36–7, paras 37–8, para 132, para 335, para 327.

Douglas, [2001] QB 967.

[2002] EWCA Civ 337.

[2002] EWCA Civ 1373 (‘Campbell’).

Av B & C, [2002] EWCA Civ 337, para 43.

Av B & C, [2002] EWCA Civ 337, para 43.

Av B & C, [2002] EWCA Civ 337, para 43.

Av B & C, [2002] EWCA Civ 337, para 43, p.43 at which the Court cites with approval a passage from the judgment of Ouseley J in Theakston v MGM Limited [2002] EWHC 137. Theakston was decided after the first instance judgment in Av B&C but before the decision of the Court of Appeal. Ouseley J refused to grant an injunction to prevent publication of a newspaper article revealing that the claimant, a presenter of the TV programme Top of the Pops had engaged in sexual activities with prostitutes at a brothel. In his Honour's view, sexual activity with prostitutes in a brothel was not confidential of its nature in the absence of an express stipulation of confidentiality by one party accepted by the other party. Moreover, he held that the disclosure of the information was in the public interest because the claimant was, by the very nature of his job, a role model for young people and had placed the subject of his personal relationships and attitudes towards sexual relations in the public domain. His Honour did however grant an injunction to restrain publication of photographs taken of the claimant at the brothel without his consent, on the basis that publication would constitute a breach of confidentiality and an ‘intrusion into his private and personal life … in a peculiarly humiliating and damaging way’ (para 78).

Campbell, [2002] EWCA Civ 1373, para 17.

Campbell, [2002] EWCA Civ 1373, para 17, paras 9, 35–6.

Campbell, [2002] EWCA Civ 1373, para 17, paras 9, 35–6, para 28.

Campbell, [2002] EWCA Civ 1373, para 17, paras 9, 35–6, para 28, paras 33–4.

Campbell, [2002] EWCA Civ 1373, para 17, paras 9, 35–6, para 28, paras 33–4, para 31.

Campbell, [2002] EWCA Civ 1373, para 17, paras 9, 35–6, para 28, paras 33–4, para 31, para 34.

Campbell, [2002] EWCA Civ 1373, para 17, paras 9, 35–6, para 28, paras 33–4, para 31, para 34, para 38.

Campbell, [2002] EWCA Civ 1373, para 17, paras 9, 35–6, para 28, paras 33–4, para 31, para 34, para 38, para 41.

Campbell, [2002] EWCA Civ 1373, para 17, paras 9, 35–6, para 28, paras 33–4, para 31, para 34, para 38, para 41.

[2001] HCA 63, para 42. See note 33 and accompanying text. Campbell, [2002] EWCA Civ 1373, para 54.

Campbell, [2002] EWCA Civ 1373, para 54, para 56.

[2001] HCA 63, para 42. See note 33 and accompanying text. Campbell, [2002] EWCA Civ 1373, para 54, para 56.

[2001] HCA 63, para 42. See note 33 and accompanying text. Campbell, [2002] EWCA Civ 1373, para 54, para 56, para 64. Since this paper was accepted for publication, the Court of Appeal decision has been overturned by a majority decision of the House of Lords: Campbell v MGN Ltd [2004] UKHL 22. The majority made it clear that the breach of confidence action is now a privacy tort in all but name. The decision is discussed in detail in Carolyn Doyle and Mirko Bagaric, Legal and Moral Aspects of Privacy (Federation Press: Sydney, 2005), Ch 4.

For a discussion of the triumph of free speech over privacy in US law see D A Anderson, ‘The Failure of American Privacy Law’ in B. Markensis (ed.), Protecting Privacy (Oxford: Oxford University Press, 1999) p.139.

[2001] HCA 63, para 34.

‘Personal information’ is defined in s6 to mean: ‘information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion’.

Australian Capital Territory Government Service (Consequential Provisions) Act 1994 (Cth).

The amendments came into operation on 21 December 2000.

Small business operators as defined in s6D(1) and (3) of the Act are exempt from compliance with the NPPs unless they trade in personal information The Act does not apply to acts and practices in relation to ‘employee records’ as defined in s6 (s 7B(3) or engaged in by media organisations in the course of journalism, if the organisation is publicly committed to observing published written privacy standards.

Privacy Act 1988 (Cth), Part IIIA.

Information Privacy Act 2000 (Vic), which came nto effect on 1 December 2002.

Privacy and Personal Information Act 1998 (NSW). The jurisdiction of the Act is generally limited to the public sector. However, the Privacy Commissioner (NSW) can also investigate and conciliate privacy breaches by organisations and individuals who are not public sector agencies.

Information Act 2002. The Act will come into effect no later than 1 July 2003.

The Act contains privacy principles based on the federal legislation but modified to suit the requirements of health records. The ACT Community and Health Services Complaints Commissioner handles health record privacy complaints.

The Health Records and Information Privacy Act 2002 was passed in September 2002 and will take effect sometime in the next 12–18 months.

Green v R (1996) A Crim R 229, 236.

Green v R (1996) A Crim R 229; Fairfax (1995) v Doe 37 NSWLR 81, 97; Taciak (1995) 81 A Crim R 348, 361; R v Nicholas [2000] 1 VR 356; R v Evans – BC9908090 – 13 October 1999, Supreme Court (Vic).

Surveillance Devices Act 1999 (Vic).

Surveillance Devices Act 1998 (WA).

Workplace Video Surveillance Act 1998 (NSW).

See T. Campbell, The Legal Theory of Ethical Positivism (Aldershot and Brookfield, US: Dartmouth, 1996) pp.161–88, who discusses the near universal trend towards Bills of Rights and constitutional rights as a focus for political choice. By ‘rights talk’ we also included the abundance of declarations, charters, bills and the like, such as the Universal Declaration of Human Rights (1948); the International Covenant of Economic, Social and Cultural Rights (1966); and the European Convention for the Protection of Human Rights and Fundamental Freedoms (1966), that seek to spell out certain rights. Granted, numerous examples of rights-based language existed prior to the Second World War, such as the Declaration of Independence of the United States (1776) and the Declaration of the Rights of Man and Citizens (1789); however, it is only in relatively modern times that such documents have gained widespread appeal, recognition and force.

S.I. Benn, ‘Human Rights – For Whom and For What?’, in E. Kamenka and A.E. Tay (eds), Human Rights (Port Melbourne, Victoria: Edward Arnold (Australia) 1978) p.59, at p.61.

T. Campbell, ‘Realizing Human Rights’, in T. Campbell et al. (eds), Human Rights: From Rhetoric to Reality (New York: Blackwell, 1996) pp.1, 13. Campbell also makes the important point that whether or not human rights are intellectually defensible, they are still needed as a source of protection of important human interests: T. Campbell (note 80) pp.165–6.

Almost to the point where it is not unthinkable to propose that the ‘escalation of rights rhetoric is out of control’: see L.W. Sumner, The Moral Foundation of Rights (Oxford and New York: Oxford University Press 1987) p.1.

Almost to the point where it is not unthinkable to propose that the ‘escalation of rights rhetoric is out of control’: see L.W. Sumner, The Moral Foundation of Rights (Oxford and New York: Oxford University Press 1987) p.1.

H.L.A. Hart, Essays in Jurisprudence and Philosophy (Oxford: Clarendon Press; New York: Oxford University Press, 1983), pp.196–7.

See M. Bagaric, ‘In Defence of a Utilitarian Theory of Punishment: Punishing the Innocent the Compatibility of Utilitarianism and Rights’, Australian Journal of Legal Philosophy, Vol.24, (1995), p.95 at pp.121–43; M. Bagaric, Sentencing and Punishment: A Rational Approach (London; Sydney: Cavendish, 2001), ch.4.

These examples are cited by J. Kleinig, ‘Human Rights, Legal Rights and Social Change’ in Kamenka and Tay (note 81) pp.36, 40.

S.I. Benn, ‘Rights’, in P. Edwards (ed.), Encyclopedia of Philosophy (Collier-MacMillan, 1967) Vol.7, p.196.

L.W. Sumner (note 83) pp.8–9.

As is discussed below it could be argued that loyalty is derivative from the ‘right’ to liberty. However, this does not appear to be relevant in a deontological ethic, where foundational, stand-alone rights are the interests that are normally regarded as being worthy of most protection.

T. Campbell (note 80), p.165.

T. Campbell (note 80), p.165.

See also J.S. Mill who claimed that rights reconcile justice with utility. Justice, which he claims consists of certain fundamental rights, is merely a part of utility. And ‘to have a right is … to have something which society ought to defend … . [if asked why] … I can give no other reason than general utility’: J.S. Mill, ‘Utilitarianism’ in M Warnock (ed), Utilitarianism (1986, first published 1859) pp.251, 309. T. Campbell, in The Legal Theory of Ethical Positivism (note 80), pp.161–85, also proposes a reductive approach to rights; however, underlying his rights thesis is not utilitarianism, but rather (ethical) positivist ideals. Ethical Positivism is also discussed in T. Campbell, ‘The Point of Legal Positivism’, in T. Campbell (ed), Legal Positivism (Aldershot: Ashgate, 1999) p.323.

M. Bagaric (note 86).

J.S. Mill (note 93), pp.141–83.

These rights, however, are never decisive and must be disregarded where they would not cause net happiness (otherwise this would be to go down the rule utilitarianism track).

See J. Raz, Morality of Freedom (Oxford: Clarendon Press; New York, Oxford University Press, 1986), p.191. Raz also provides that rights are useful because they enable us to settle on shared intermediary conclusions, despite considerable disputes regarding the grounds for the conclusions.

M. Richardson, ‘Whither Breach of Confidence: A Right of Privacy for Australia?’, MULR, Vol.26 (2002), pp.394–5.

B.R. Ruiz (note 2) p.34.

P. Bailey, Human Rights: Australia in an International Context (Sydney: Butterworths, 1990), p.284.

G. Dworkin, The Theory and Practice of Autonomy (Cambridge; New York: Cambridge University Press 1986), pp.5–6.

G. Dworkin, The Theory and Practice of Autonomy (Cambridge; New York: Cambridge University Press 1986), pp.5–6, p.20.

J. Rawls, A Theory of Justice (Oxford: Oxford University Press 1972), p.516.

He states that autonomy is literally ‘self-government’ and people are autonomous ‘to the extent to which they are able to control their own destiny, by the exercise of their own faculties’: J. Harris, The Value of Life: An Introduction to Medical Ethics (London and Melbourne: Routledge & Kegan Paul, 1985), p.195.

J Finnis, ‘Living Will Legislation’ in L. Gormally (ed.), Euthanasia, Clinical Practice and the Law (Linacre Centre for Health Care Services: 1994), pp.167, 171.

Cited in D.C. Thomasma et al., ‘Reexaming Thou Shalt Not Kill’ in D.C. Thomasma et al., Asking to Die: Inside the Dutch Debate About Euthanasia (Dordrecht and Boston: Kluwer Academic Publishers, 1998) pp.7, 16, note 7.

J.S. Mill, ‘On Liberty’ in M. Warnock (ed.), Utilitarianism (Glasgow: Fontana Press 1986, first published 1859) pp.126, 135.

M. Richardson (note 98) pp.389–90.

I. Kant, The Metaphysics of Morals (1797) Mary Gregor (trans. and ed.), (1991), p.255.

Linacre Centre for Health Care Services, ‘Submission to the Select Committee of the House of Lords on Medical Ethics’ in L. Gormally (ed.) (note 105) pp.113, 128.

R. Dworkin, Life's Dominion: an argument about abortion and euthanasia (London: HarperCollins, 1993), p.239.

This is the same view taken in the most recent treatise on dignity, see D. Beyleveld and R. Brownsword, Human Dignity in Bioethics and Biolaw (Oxford: Oxford University Press, 2001).

This is the same view taken in the most recent treatise on dignity, see D. Beyleveld and R. Brownsword, Human Dignity in Bioethics and Biolaw (Oxford: Oxford University Press, 2001), p.242.

L.W. Sumner (note 83), pp.8–9.

P. Singer, ‘All Animals are Equal’, in P. Singer (ed.), Applied Ethics (Oxford and New York: Oxford University Press, 1986) at pp.215, 228.

D. Beyleveld and R. Brownsword (note 112), p.242.

Victorian Law Reform Commission (note 4) p.15.

Critics may contend that happiness, like integrity and dignity, is also too vague an ideal to underpin more concrete rights. It could be claimed that the things that make people happy are simply too divergent for any generalisations to be made in this regard. Humans all have a need for the necessities of life: food, shelter and clothing. Beyond that, however, it could be contended that happiness is a subjective concept. Promising research suggests that this is not the case – we are not all that different after all in respect to the things that make us happy. A key to happiness seems to be companionship, which is far more important than material goods. Professor Lane has found that contrary to economists' belief that income (together with leisure) is the source of all good, evidence shows that companionship, which does not pass through the market, has higher utility and contributes more to well-being than does income (R.E. Lane, ‘Diminishing Returns to Income, Companionship – and Happiness’ Journal of Happiness Studies Vol.1 (2000), p.103. Other studies have shown a range of other factors that are relevant to happiness. The number of friends one has is a much better indicator of overall happiness than personal wealth. People are far more likely to achieve happiness by spending time with friends and family than by striving for higher income. Once one is beyond the poverty level, a larger income contributes almost nothing to happiness. It is suggested that our need for companionship is part of our biological endowment. All primates respond with pleasure to demonstrations of affection and with pain to loss of companionship. If we ignore our biological need for each other, we risk physical and mental distress (See further, R.E. Lane, Loss of Happiness in Market Democracies (New Haven: Yale University Press, 2000). But see R.A. Cummins, ‘Personal Income and Subjective Well-being: A Review’, Journal of Happiness Studies, Vol.1 (2000), p.133, who argues that there is a stronger link between wealth and happiness). A study by Professor Argyle appears to confirm these findings. He notes that people on middle incomes are just as happy as the rich, and only the very poor are less happy (happiness only increases with income, where people believe they are being paid more than they expect). In keeping with this, it was revealed that the purchase of luxury items, such as expensive clothes and oil paintings, makes us no happier. One of the main guarantees of happiness (especially for men) is marriage, largely due to the companionship and emotional support which it provides. The corollary of this is also true; divorced and separated people are the least happy (even more so than people who have been widowed). Also, the more challenged a person is, whether by a job, hobby or sport, the happier they are likely to be. (One quirky result was that people who watch television soaps were happier than those who do not, but watching lots of soaps was counter-productive to happiness. See T. Reid, ‘Some Research That May Bring You a Degree of Happiness’ The Age, 6 October 1998, p.10). This last finding seems to be consistent with the view that the unemployed are much less happy than the employed, independent of income. Another interesting point to emerge is that the more developed the institutions of direct democracy, the happier the individuals are, irrespective of the outcome of the democratic process (D.S. Frey, in ‘Happiness Prospers in Democracy’ Journal of Happiness Studies (2002), p.79). Accordingly, it would seem that several key components of happiness are companionship, projects (such as jobs) and the ability to participate in the decisions that affect our lives. We do not contend that this list is exhaustive nor indeed very instructive in terms of determining which interests and rights should be recognised. However, such evidence does rebut the criticism that happiness is an inherently vague and indeterminate ideal.

The absurdity of absolute rights is supported by the extreme lengths some have gone to in order to attempt to justify such a notion. For example, in search of an absolute right it has been stated that ‘the right of a mother not to be tortured to death by her son is absolute’ (A. Gewirth, Human Rights: Essays on Justification and Applications (Chicago: University of Chicago Press 1982), p.232). However even such extreme examples fail. One could hardly begrudge a son torturing his mother to death if this is only way to save the lives of all his other relatives whom the mother was about to unjustifiably kill.

U.S. Congress, Office of Technology Assessment, ‘The Problem of Definition – Privacy and Confidentiality’ Protecting Privacy in Computerized Medical Information (OTA-TCT-576 (Washington, DC: U.S. Government Printing Office, September 1993), accessed at http://www.csu.edu.au/learning/ncgr/gpi/odyssey/privacy/ota_pc.html.

S.D. Warren and L.D. Brandeis, ‘The Right to Privacy’, Harvard Law Review, Vol.4 (1890), p.198.

No doubt laws could be framed which compel people to declare their values, beliefs and other mental states; however, this could require a large degree of official coercion – torture, imprisonment and the like. There is certainly no momentum in such a policy and hence we do not consider it further.

In which case law enforcement officers have redress to intrusive mechanisms, such as warrants or communications interception devices.

S. Gibbs, ‘Is Privacy A Virus?’, in H. Selby (ed.), Tomorrow's Law (Leichhardt, NSW: Federation Press 1995), pp.131–2.

S. Gibbs, ‘Is Privacy A Virus?’, in H. Selby (ed.), Tomorrow's Law (Leichhardt, NSW: Federation Press 1995), pp.131–2, p.132.

Lenah, [2001] HCA 63, para 42 (emphasis added). Gleeson CJ's test has been adopted by the English Court of Appeal in A v B & C [2002] EWCA Civ 337, para 48, 54 and Campbell [2002] EWCA Civ 1373, para 11.

J.S. Mill (note 107) pp.143–83.

For an analysis of the economics of giving individuals a right to information privacy see R.A. Posner, ‘The Right of Privacy’, Georgia Law Review, Vol.12 (1978), p.393. In relation to the concealment of discreditable personal information, Posner concludes at p.400 that ‘everyone should be allowed to protect himself from disadvantageous transactions by ferreting out concealed facts about individuals which are material to the representations (implicit and explicit) that those individuals make concerning their moral qualities’.

Victorian Law Reform Commission (note 4), p.18.

Victorian Law Reform Commission (note 4), p.18, p.29.

See J. Rachels, The End of Life: Euthanasia and Morality (Oxford: Oxford University Press, 1986), p.178, where he outlines the views reached by the historian of the Nazi era, Lucy Dawidowicz.

Gibbs (note 124), p.139.

Gibbs (note 124), p.139, pp.139–41.

X v Iceland (1976) 5 Eur. Comm HR 86.87, quoted in Privacy International, ‘Privacy and Human Rights: An International Survey of Privacy Law and Practice’, accessed at http://www.gilc.org/privacy/survey.

For an overview of Mills's views so far as they pertain to privacy interests, see Richardson (note 98) pp.390–91.

S.I. Benn, ‘The Protection and Limitation of Privacy’, ALJR, Vol.52 (1978) p.601, p.607.

C.B. Gardner, 'Safe Conduct: Women, Crime, and Self in Public Places, (1990) 37 Soc Probs 311, 314, quoted in L. Tien, ‘Who's Afraid of Anonymous Speech’, Oregon Law Review, Vol.75 (1996) p. p.165.

See J. Rosen, The Unwanted Gaze (New York: Random House, 2000), p.12 and L. Tien, C.B. Gardner, 'Safe Conduct: Women, Crime, and Self in Public Places, (1990) 37 Soc Probs 311, 314, quoted in L. Tien, ‘Who's Afraid of Anonymous Speech’, Oregon Law Review, Vol.75 (1996) p. p.165, pp.160–67, discussing the sociological theory of personal identity propounded by Erving Goffman.

See J. Rosen, The Unwanted Gaze (New York: Random House, 2000), p.12 and L. Tien, See J. Rosen, The Unwanted Gaze (New York: Random House, 2000), p.12 and L. Tien, C.B. Gardner, 'Safe Conduct: Women, Crime, and Self in Public Places, (1990) 37 Soc Probs 311, 314, quoted in L. Tien, ‘Who's Afraid of Anonymous Speech’, Oregon Law Review, Vol.75 (1996) p. p.165, pp.160–67, discussing the sociological theory of personal identity propounded by Erving Goffman, pp.160–67, discussing the sociological theory of personal identity propounded by Erving Goffman.

J. Rosen (note 138), pp.215–16.

J. Rosen (note 138), pp.215–16, pp.8–9.

S.I. Benn (note 136), pp.607–8.

R.A. Posner (note 128), pp.407–8.

A. von Hirsch and N. Jareborg, ‘Gauging Criminal Harm: A Living-Standard Analysis’, Oxford Journal of Legal Studies, Vol.11 (1991), p.1.

It has been argued that the approach adopted and conclusions reached by von Hirsch and Jareborg have uncanny similarities with a transparently utilitarian evaluation of harm analysis. The considerations they identify are no more than a rough armchair utilitarian scale of the primacy of interests relevant to happiness. For example, it seems evident that the most essential requirement to the attainment of any degree of meaningful happiness is physical integrity and subsistence, followed by material support and minimal well-being and so on. The type of infringement which most seriously interferes with our capacity to attain happiness is our physical integrity. The next thing many seem to value most is material support. Freedom from humiliation and privacy and autonomy, though not necessarily in that order, are also important interests towards the road to happiness. See M. Bagaric, ‘Proportionality in Sentencing: Its role and justification’, Current Issues in Criminal Justice, Vol.12. (2000), p.142.

See M. Bagaric, Punishment and Sentencing: A Rational Approach (London and Sydney: Cavendish, 2001).

A. von Hirsch and N. Jareborg (note 144). The phrase von Hirsch actually uses is a good life (instead of a happy life), but in my view there is no meaningful distinction.

The inviolability of physical integrity is discussed in M. Bagaric, ‘Active and Passive Euthanasia: Is There a Moral Distinction and Should There be a Legal Difference’, Journal Law and Medicine, Vol.5 (1997), p.143.

This above list of human interests compares with the hierarchy of human concerns postulated by von Hirsch and Jareborg in ‘Gauging Criminal Harm: A Living-Standard Analysis’, Oxford Journal of Legal Studies, Vol.11 (1991), p.1. They claim that the most important human interests are as follows: physical integrity; material support and amenity (ranging from nutrition and shelter to various luxuries); freedom from humiliating or degrading treatment; privacy; and autonomy. The hierarchy developed by von Hirsch and Jareborg was in the context of interests that are violated by criminal offences, hence it is not surprising that education, employment and family are not expressly mentioned in their list.

M. Bagaric (note 146).

The right to privacy is noted in the International Covenant on Civil and Political Rights (ICCPR), Article 17, which provides that ‘no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour or reputation. Australia is a signatory to the ICCPR and gives effect to its obligations under article 17 via the Privacy Act 1988 (Cth). However, as was noted previously in this article, the extent to which privacy interests are protected under this Act is quite narrow. The fact that this is sufficient to discharge Australia's international obligations shows that there is little genuine commitment to privacy at the international level.

J.C. Hathaway, The Law of Refugee Status (Toronto: Butterworths, 1991), p.v.

The refugee exception to this aspect of national sovereignty is not absolute. Countries, of course, voluntarily assume protection obligations towards refugees. Further, refugees are not guaranteed rights of full asylum. The obligation assumed by parties to the Convention and Protocol is one of non-refoulement: not to return the person to the place where persecution is feared. However, pragmatically, once countries do ratify the Convention they do not repudiate it and most nations do in fact provide long-term asylum to refugees.

As is noted in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status (1991), at 61, ‘there is no universally accepted definition of ‘persecution’, and various attempts to formulate such a definition have met with little success’.

As is noted in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status (1991), at 61, ‘there is no universally accepted definition of ‘persecution’, and various attempts to formulate such a definition have met with little success’, p.14.

Hathaway (note 152), pp.104–5.

See J. Franzen, ‘Imperial Bedroom’ in How to be Alone (London: Fourth Estate, 2002), pp.46–8.

J. Rosen (note 138), pp.171–95.