Privacy Jurisprudence Research Articles

Dissent in the Aadhaar Judgement: Exploring Dimensions of the Future of Privacy Jurisprudence in India

Dissent in the Aadhaar Judgement: Exploring Dimensions of the Future of Privacy Jurisprudence in India

Towards a Public Law Perspective on the Constitutional Law of Privacy in South Africa in the Age of Digitalization

AbstractRapid and radical digitalization and the “fourth industrial revolution” are generally associated with progress, but also pose significant risks to privacy rights and democracy. This article proposes a public law reading of the South African Constitution to respond to the dangers posed by disruptive technological change, in light of the constitution's rights-orientated and rule-of-law-centred approach to interpreting the right to privacy. It examines the legal resources available in the South African legal system and, specifically, its constitution. The article emphasizes the way South African privacy jurisprudence infuses the right to privacy with the value of dignity, and how this allows an interpretation that sees privacy as a public, as well as private, right. The article concludes that this rights jurisprudence, alongside the constitutional principles of proportionality, subsidiarity and supremacy, has established a working foundation to articulate the right to privacy in a way that is suitable in the digital age.

THE RIGHT TO BE FORGOTTEN IN DATA PROTECTION LAW AND TWO WESTERN CULTURES OF PRIVACY

AbstractData protection law has emerged as an important bulwark against online privacy intrusions, and yet its status within privacy law remains awkward. Its starting point of protecting ‘personal’ rather than ‘private’ information puts it at odds with privacy more generally. Indeed, in its very design, data protection law caters for the protection of public personal information, or personal information which has attained a degree of publicness through disclosure. Building on James Whitman's comparative privacy study, this article argues that data protection law is not the odd bedfellow of privacy law properly so called but may be understood as a manifestation of the Continental European culture of privacy. Its distinctiveness does not lie in its apparent technicality but in its robust openness to privacy in public—an idea that is alien to the Anglo-American culture of privacy. Whilst these two cultures of privacy have long ‘met’ in different jurisdictions, this article locates their enduring influence and antagonism within three contemporary privacy regimes. By taking the right to be forgotten, as an archetypal privacy-in-public right, in the testing context of spent criminal convictions, the article gauges the comparative openness to such claims, first, of the Court of Justice of the European Union as the authoritative voice on General Data Protection Regulation normativity; secondly, of the US judiciary as committed to the First and Fourth Amendment; and, thirdly, of the European Court of Human Rights on Article 8 of the European Convention on Human Rights and its fused Anglo-American and Continental European privacy jurisprudence. It is the latter jurisprudence in particular that highlights the tensions arising from trying to marry the two privacy traditions, or merge data protection and ‘privacy’ law. Yet, these tensions also offer insights and opportunities.

The Process of Legal Institutionalization: How Privacy Jurisprudence Turned towards the US Constitution and the American State

During the twentieth century, privacy evolved from an ambiguous legal idea into a defined state-centric right, while privacy claims against non-state entities became more marginalized. Whereas prior studies treat this as the direct outcome of cultural shifts or landmark interventions by legal elites, I document legal institutionalization as a three-stage process of domain formation and meaning making. Using a combination of citation network analysis and qualitative research, I show that the concept of privacy first entered the legal field when journalists raised concerns about the unauthorized use and commodification of personal data; that US jurisprudence produced two competing schools of legal thought as judges and legal scholars struggled to give substance to an abstract concept and structure to an evolving domain of judicial practice; and that privacy was consecrated as a constitutional right when state courts and the US Supreme Court selectively mobilized the language of privacy to confront the expanding reach of the American state. These findings demonstrate the processual nature of legal institutionalization, draw attention to intra-legal contestation and the implicit pluralism of American jurisprudence, and highlight an emerging distinction between the legal regimes governing bureaucratic rule and market exchanges in the early twentieth century.

Critical Examination of the Privacy Jurisprudence in the Transparency Versus Confidentiality Debate in Country-by-Country Reporting for Multinational Enterprises

Critical Examination of the Privacy Jurisprudence in the Transparency Versus Confidentiality Debate in Country-by-Country Reporting for Multinational Enterprises

Abolishing consummation: the need to de-essentialise sex within marriage

ABSTRACT This article critiques the centrality of heteronormative sex and “functional” bodies within marriage by analysing provisions on non-consummation andfault-based grounds of divorce, in codified personal laws. Such provisions, arguably, allows judges to construct marriage as an institution entrenched in heterosexual performatives. When heterosexual intercourse is construed as an obligation it leads to three problems. First, courts use such provisions to direct parties to undergo humiliating gender and impotency tests Second, it blurs the distinction between marital rape and marital sexuality. Finally, such provisions present a challenge to the recognition of non-normative,marriages as well, if they come to be recognized in India. Given this, we argue for de-essentialising of sex within marriage through the removal of consummation as a ground of annulment and more broadly, for the introduction of a no-fault regime of divorce. Reliance is placed on recent developments in the arena of privacy jurisprudence in India.

Privacy Law for Nigerian Women: Pregnancy, Birth and LGBT

This paper discusses the effect of the Nigerian laws which criminalize abortion and homosexuality on the privacy right of the individual. Part four analyses privacy right in Nigeria and also discusses infringement of the right to privacy by Nigerian law that criminalizes abortion. The author makes suggestions on the way Nigeria will recalibrate its privacy right protection by relying on extant privacy jurisprudence in other jurisdictions as a model. It is therefore recommended that Nigeria should amend its anti-abortion and anti-homosexual laws and join the League of Nations, especially those mentioned in this work, to protect the privacy of all Nigerians — heterosexual as well as homosexuals and women.

Playing catch up – privacy regimes in South Asia

ABSTRACT This article is an attempt to examine the growing consolidation and harmonisation of privacy and surveillance laws in the major SAARC member nations, as well as to take stock of South Asia’s emerging privacy jurisprudence. Driven by reactions to increasingly frequent data collection and profiling attempts by the government, as well as the side effects of growing digital markets, the privacy discourse in South Asia is evolving with a heightened awareness of privacy as a core fundamental right. At the same time, some governments in the region are also keen to explore the benefits of the digital economy, and are increasingly developing economic policies that focus on the use of data as a ‘resource’ for the State and the industry. Apart from outlining these developments, the article delves into and identifies the source of privacy rights in these countries, whether derived from the constitutions of the respective countries or otherwise provided for through specific legislation. The article traces and examines the legal architectures of privacy and surveillance in the region, including national profiling databases. It then zooms out to pinpoint possible trends and influences.

The Right To Be And Become: Black Home-Educators As Child Privacy Protectors

The right to privacy is one of the most fundamental rights in American jurisprudence. In 1890, Samuel D. Warren and Louis D. Brandeis conceptualized the right to privacy as the right to be let alone and inspired privacy jurisprudence that tracked their initial description. Warren and Brandeis conceptualized further that this right was not exclusively meant to protect one’s body or physical property. Privacy rights were protective of “the products and the processes of the mind” and the “inviolate personality.” Privacy was further understood to protect the ability to “live one’s life as one chooses, free from assault, intrusion or invasion except as can be justified by the clear needs of community living under a government of law.” Case law supported and extended their theorization by recognizing that privacy is essentially bound up in an individual’s ability to live a self-authored and self-curated life without unnecessary intrusions and distractions. Hence, privacy may be viewed as the right of individuals to be and become themselves. This right is well-established; however, scholars have vastly under- theorized the right to privacy as it intersects with racial discrimination and childhood. Specifically, the ways in which racial discrimination strips Black people—and therefore Black children—of privacy rights and protections, and the ways in which Black people reclaim and reshape those rights and protections remain a dynamic and fertile space, ripe for exploration yet unacknowledged by privacy law scholars. The most vulnerable members of the Black population, children, rely on their parents to protect their rights until they are capable of doing so themselves. Still, the American education system exposes Black children to racial discrimination that results in life-long injuries ranging from the psychological harms of daily racial micro-aggressions and assaults, to disproportionate exclusionary discipline and juvenile incarceration. One response to these ongoing and often traumatic incursions is a growing number of Black parents have decided to remove their children from traditional school settings. Instead, these parents provide their children with home- education in order to protect their children’s right to be and become in childhood.

The Right to Be and Become: Black Home-Educators as Child Privacy Protectors

The right to privacy is one of the most fundamental rights in American jurisprudence. In 1890, Samuel D. Warren and Louis D. Brandeis conceptualized the right to privacy as the right to be let alone and inspired privacy jurisprudence that tracked their initial description. Warren and Brandeis conceptualized further that this right was not exclusively meant to protect one’s body or physical property. Privacy rights were protective of “the products and the processes of the mind” and the “inviolate personality.” Privacy was further understood to protect the ability to “live one’s life as one chooses, free from assault, intrusion or invasion except as can be justified by the clear needs of community living under a government of law.” Case law supported and extended their theorization by recognizing that privacy is essentially bound up in an individual’s ability to live a self-authored and self-curated life without unnecessary intrusions and distractions. Hence, privacy may be viewed as the right of individuals to be and become themselves. This right is well-established; however, scholars have vastly undertheorized the right to privacy as it intersects with racial discrimination and childhood. Specifically, the ways in which racial discrimination strips Black people—and therefore Black children—of privacy rights and protections, and the ways in which Black people reclaim and reshape those rights and protections remain a dynamic and fertile space, ripe for exploration yet unacknowledged by privacy law scholars. The most vulnerable members of the Black population, children, rely on their parents to protect their rights until they are capable of doing so themselves. Still, the American education system exposes Black children to racial discrimination that results in life-long injuries ranging from the psychological harms of daily racial micro-aggressions and assaults, to disproportionate exclusionary discipline and juvenile incarceration. One response to these ongoing and often traumatic incursions is a growing number of Black parents have decided to remove their children from traditional school settings. Instead, these parents provide their children with home-education in order to protect their children’s right to be and become in childhood.

Digital Privacy in Emerging Contexts: Lessons from the SCC's Evolving Section 8 Jurisprudence.

This paper explores the Supreme Court of Canada's increasingly nuanced privacy jurisprudence through the context of R v Reeves, 2018 SCC 56, a decision cementing constitutional privacy protections in shared devices. The implications of approach adopted in R v Reeves for a number of upcoming privacy decisions are examined, ultimately touching on undercover police operations, Canada's voyeurism offence and the privacy protections an invited visitor can expect when law enforcement unlawfully enter his host's backyard.

The Emperor of All Actualities: S.377 Jurisprudence in Comparative Context

Navtej Singh Johar v. Union of India revolutionized, contemporized, and revitalized our Equality jurisprudence. In this essay, I argue that Supreme Court’s jurisprudence culminating in Navtej is best understood as one in a long line of cases leading us to an expanded notion of equality (Articles 14 and 15) in the context of a gradual and ongoing judicial acceptance of academic scholarship on a global theory of sexual sovereignty. I address the history behind S. 377 including colonial history, early jurisprudence, attempts at repeal, the High Court decision in Naz Foundation, the reversal in Koushal, and the intermediary steps of NALSA and Puttaswamy leading to redemption in Navtej. I also examine the Indian Supreme Court’s changing attitudes towards comparative constitutionalism with a special emphasis on foreign law, examining the global theory and comparing Navtej with its parallel in Lawrence v. Texas with a focus on Spatial Privacy, Deliberative Autonomy, and Expressive Liberty. I further examine the constitutionality of S. 377 in a neutral manner while considering parallels with Lawrence, noticing how a utopian reading of Lawrence maps perfectly onto the singular approach in Naz and the various approaches in Navtej. I also note the most distinct contributions to our jurisprudence made by the bench in Navtej. In doing so, I examine the changes in our Article 14 and Article 15 jurisprudences, our Right to Privacy jurisprudence emanating from Article 21, and the varying judicial attitudes that lead to such changes. I conclude with a note on the importance of clear rule-making, clarity, consistency, and respect for the separation of powers in judicial analysis.

Privacy as a Human Right in the Digital Age: In Quest of a Safer Protection Regime in Bangladesh

Although the privacy jurisprudence has reached into an intense debate on to which extent the right to privacy should be allowed in this digital age in the reality of terrorism, newly evolved crimes and ever-evolving national security concerns, Bangladesh is still in its infancy in dealing with right to privacy and its related issues. The privacy provisions in Bangladesh Constitution and a few other statutory laws are quite scattered, insufficient to combat the emerging challenges posed in this digital age. Globally, the idea of privacy and data protection have been placed in important instruments like UDHR, ECHR and ICCPR with almost identical understanding as to privacy as a human right. Moreover, OECD Directives of Data Protection, 1980 as updated in 2013, EU General Data Protection Regulation, 2018 and the Data Protection Act, 2018 of the UK have advanced the privacy understanding to a new level. The courts in many jurisdictions including USA, UK, EU and India have laid down few notable principles on this very issue. In this article, after analyzing the best practices around the world, a critical examination of current privacy and data protection provisions of Bangladesh will be placed. The article offers some suggestions on how Bangladesh can combat the emerging privacy and data protection challenges and specific vulnerabilities in this digital age.

Hulk Hogan and the demise of Gawker Media: wrestling with problems of celebrity voyeurism, newsworthiness and tabloidisation

ABSTRACTThe article uses the private-facts lawsuit of the retired wrestler Hulk Hogan against Gawker Media as a case study to look at the challenges of balancing the media’s freedom of expression and individuals' privacy in the contemporary celebrity-centred culture. It suggests that the verdict in the privacy suit reflects the jurors' profound disenchantment with the way in which freedom of expression was subverted in this case by the media organisation. It further adopts a comparative perspective that draws parallels and highlights differences between American and English privacy law. It explores Hogan's claim through the lens of the emerging English privacy jurisprudence and identifies important lessons to be learnt for the future of the newly developed tort of misuse of private information.

Women’s Reproductive Rights: A Judicial Rhetoric towards a Privacy Jurisprudence

Women’s Reproductive Rights: A Judicial Rhetoric towards a Privacy Jurisprudence

The Texas Response to Federal Privacy Jurisprudence

In 2012 over ten million children in the United States were living without their fathers. In 2013 over 1.8 million of those children were in Texas, living in mother-only households. Children are being deprived of a needed parent. Has the United States Supreme Court’s endorsement of the philosophy of individualism in its privacy jurisprudence contributed to this rise in fatherless households? This article will discuss the effects of that jurisprudence on the State of Texas and how Texas has responded. Part I of this article discusses the Supreme Court’s privacy jurisprudence. That examination will reveal a shift from the Court’s protection of families to a jurisprudential assault on families through judicial endorsement of extreme individualism. Part II examines the origins, philosophy, and effects of this individualism, including marital and family breakdown and father absence, specifically considering statistical and demographic evidence from Texas. Part III explains Texas’s response to that jurisprudence and the State’s efforts to protect life and family relationships. While Texas’s public policy has been to strengthen families and promote fatherhood in the State, the High Court’s privacy jurisprudence has divided family unity in favor of individualism, which is having a profound effect on children. This article illustrates that Texas is making efforts to counteract those effects.

The FTC and the New Common Law of Privacy

One of the great ironies about information privacy law is that the primary regulation of privacy in the United States has barely been studied in a scholarly way. Since the late 1990s, the Federal Trade Commission (FTC) has been enforcing companies’ privacy policies through its authority to police unfair and deceptive trade practices. Despite over fifteen years of FTC enforcement, there is no meaningful body of judicial decisions to show for it. The cases have nearly all resulted in settlement agreements. Nevertheless, companies look to these agreements to guide their privacy practices. Thus, in practice, FTC privacy jurisprudence has become the broadest and most influential regulating force on information privacy in the United States — more so than nearly any privacy statute or any common law tort. In this Article, we contend that the FTC’s privacy jurisprudence is functionally equivalent to a body of common law, and we examine it as such. We explore how and why the FTC, and not contract law, came to dominate the enforcement of privacy policies. A common view of the FTC’s privacy jurisprudence is that it is thin, merely focusing on enforcing privacy promises. In contrast, a deeper look at the principles that emerge from FTC privacy “common law” demonstrates that the FTC’s privacy jurisprudence is quite thick. The FTC has codified certain norms and best practices and has developed some baseline privacy protections. Standards have become so specific they resemble rules. We contend that the foundations exist to develop this “common law” into a robust privacy regulatory regime, one that focuses on consumer expectations of privacy, extends far beyond privacy policies, and involves a full suite of substantive rules that exist independently from a company’s privacy representations.

The Supreme Court and information privacy

Advances in technology—including the growing use of cloud computing by individuals, agencies, and organizations to conduct operations and store and process records—are enabling the systematic collection and use of personal data by state and federal governments for a variety of purposes. These purposes range from battling crime and terrorism to assessing public policy initiatives and enforcing regulatory regimes. To aid these efforts, governments are promoting mandatory retention and reporting of data by online service providers and the expansion of laws that facilitate wiretaps to greater portions of the web. The legal framework for protecting individual privacy within this growing world of ‘big data’ is patchy and in critical ways outdated. Most of the current framework was erected in response to pronouncements by the Supreme Court over the years regarding the scope of constitutional privacy protections. Widespread agreement over the need for legislators to update the statutory regime has not yet produced results. Against this backdrop, the US Supreme Court has struggled in recent cases to articulate workable constitutional and statutory privacy norms that can help guide government, and individuals, in a world of digital and distributed data. An examination of the Court's privacy jurisprudence over the past forty years offers a number of insights into how the Court, and policy-makers, may achieve a balance between privacy and data use that accords with constitutional norms, serves vital public policy goals, and secures greater public trust and support.

Hardwick and Historiography

This article reconstructs the history and jurisprudence of sodomy laws, which were key to the reasoning of Bowers v. Hardwick, the Supreme Court decision upholding such laws against right to privacy attack. Hardwick rested on an anachronistic treatment of sodomy regulation at the time of the fifth (1791) or fourteenth (1868) amendments, the locus of the right to privacy. Specifically, the framers of those amendments would not have understood sodomy laws as regulating oral intercourse (Hardwick's crime) or as focusing on "homosexual sodomy" (the Court's focus). Moreover, the goal of sodomy regulation had traditionally been to assure that sexual intimacy occur within the context of procreative marriage, an unconstitutional basis for criminal law under the Court's privacy jurisprudence. Thus, the Hardwick Court's analysis of sodomy laws had virtually no connection with the historical understanding of sodomy but, instead, reflected the Justices' own preoccupation with "homosexual sodomy" and their nervousness about the right of privacy previous Justices had found in the due process clause. The Court's problematic historiography deepens the normative problems other scholars have identified for Hardwick and illustrates the conceptual difficulties with the Court's "historical understanding" methodology.

Warrantless Search in the Law Enforcement Workplace

One of the earliest areas of employee Fourth Amendment privacy juris prudence in the law enforcement workplace was employer warrantless search. In O'Connor v. Ortega (1987), the United States Supreme Court clarified the doctrine permitting public employers to conduct warrantless searches in the workplace. Using federal and state case law, this paper ana lyzes lower court interpretation and application of the Ortega doctrine re garding employer warrantless search in the law-enforcement workplace. The paper examines current lower court doctrine and discusses allowable warrantless search practices by law enforcement employers. This study concludes that lower courts, relying on a "balancing of competing inter ests" test between government and individual privacy, have found employer warrantless noncriminal searches permissible because of a diminished employee "expectation of privacy" in the public workplace. Further, in supplanting traditional Fourth Amendment warrant and probable-cause requirements with a reasonableness standard, the courts have expanded law enforcement employer search authority to include areas such as em ployee offices, desks, briefcases, lockers and government-issued vehicles.