Kirsty Hughes, A Behavioural Understanding of Privacy and its Implications for Privacy Law
Comment by: Bruce Boyden
Workshop draft abstract:
This article draws upon social interaction theory to develop a theory of the right to privacy. By drawing upon this literature and adopting a behavioural approach to privacy, we can better understand: how privacy is experienced; the different types of privacy that we experience; when an invasion of privacy occurs; and the social benefits of privacy.
In essence, this article claims that privacy plays a crucial role in facilitating social interaction and that an individual or group experiences privacy when he, she or they successfully employ barriers to obtain or maintain a state of privacy. Under this approach, an invasion of privacy occurs when those barriers are breached and the intruder obtains access to the privacy-seeker. This article proposes a new theory of privacy, explaining how it differs from existing theories, and how it deals with a number of crucial complex problems, including, threats, attempts and cumulative interferences with privacy. It reflects on the implications of this analysis for privacy law, in particular: the reasonable expectation of privacy test; the concept of waiver; and the balancing of competing rights and interests.
Kirsty Hughes, A Behavioural Understanding of Privacy as a Right to Respect for Barriers
Comment by: Jens Grossklags
Workshop draft abstract:
The existing scholarship has tended to focus upon the identification of privacy interests and problems. However, when one examines human behaviour it is apparent that privacy is highly subjective and that it is experienced in various forms. Drawing upon theories of privacy developed in the behavioural sciences the paper argues that we need a theory of privacy, which reflects the way that privacy is experienced. Privacy experiences are mutually created ones. They require an individual to successfully mobilise privacy barriers to prevent others from accessing him or her and they are dependent upon others respecting those barriers. Thus privacy barriers play a fundamental role in privacy experiences.
Samuel Rickless developed the original barrier theory in an article published in the San Diego Law Review in 2007. Rickless’s theory is based upon the idea that we should respect those barriers that individuals use to prevent us from discovering personal facts about them. The idea that privacy is concerned with the preservation of barriers is similar to accounts of privacy developed in the behavioural sciences, but this is not explored in Rickless’s account. Moreover, Rickless’s theory is restricted to the preservation of private information.
The paper harnesses the insights of the behavioural sciences and builds upon Rickless’s work to develop a theory of privacy that reflects understandings of privacy experiences. The paper argues that the right to privacy can be explained as a right to respect for those barriers that individuals use to prevent others from accessing them. Three types of privacy barriers are identified and analysed: (i) physical; (ii) behavioural; and (iii) normative. The paper argues that an invasion of privacy occurs when these barriers are penetrated.