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This chapter looks at the child's right to privacy. It argues that whilst in theory children have a right to privacy under Article 8 European Convention on Human Rights (ECHR), in practice there is an absence of rights-based reasoning in the privacy jurisprudence concerned with children. The chapter considers a number of areas in which the courts have been faced with cases relating to Article 8 ECHR privacy rights of the child. By analysing the manner in which the courts have addressed the right in these cases, it becomes apparent that the only situations in which the courts have given serious consideration to the child's right to privacy are situations in which either a high degree of protection is afforded to that privacy-related interest in the adult context or where the child is vulnerable to a clearly identifiable harm. This is problematic because the right to privacy is not usually, and should not be, contingent upon the individual suffering harm. Moreover, children may require greater and different privacy protection than adults. It is therefore argued that the child's right to privacy is not being adequately analysed or protected.

This chapter discusses the reconciliation of the right to privacy with the right of free expression. Part one comments on the first stage of the national debate on privacy, from the early 1960s to the late 1980s. Part two relates to the years 1990 to 1993, from the first Calcutt Report to the second one. Part three studies the events that took place after the adoption of the Human Rights Act 1998 and focuses on the new case law relating to the protection of privacy. Part four comments on the present state of English law, then the chapter shows how, in two other European countries — France and Germany — the courts have approached the issue of privacy as a right and finally the chapter offers a few remarks on the evolution of English law.

This chapter discusses the right to privacy. Topics covered include personhood and content of a human right to privacy, legal approaches to the right to privacy, privacy of information, privacy of space and life, privacy of liberty, and privacy versus freedom of expression and right to information.

This chapter briefly reviews the evolution in decisions of the U.S. Supreme Court of what was originally identified as a privacy right but is now correctly identified as a liberty right against legal paternalism. The chapter uses the main principle to trace the contours of what this right should include: (1) right to religious freedom; (2) a right to sexual freedom; (3) a right to reproductive freedom; (4) a right to refuse medical treatment, including a right to refuse extraordinary care and to be removed from life support; (5) a right to marry that includes same sex marriage; (6) a right to suicide and assisted suicide in certain end-of-life situations. The chapter also explains why there should be human rights to spatial privacy and informational privacy.

This chapter discusses some of the dramatic changes in the law relating to sexual behavior since the middle of the twentieth century. The ultimate cause, of course, was changing sexual mores. But at several points, the Supreme Court, by recognizing a constitutional right to privacy, acted in ways that gave these changing mores a solid foundation in law. This right of privacy was expanded over time to include contraception, abortion, and even same-sex behavior. Through these cases, the Court authorized marriage without sex (by prisoners, for example) and sex without marriage (between gay people, who were forbidden to marry). It also authorized marital sex without reproduction (through contraception and abortion) and reproduction without marriage (through rights of illegitimate children and unwed fathers).

The partial-entrustment model sets out a position on medical researchers’ ancillary-care obligations that many have found attractive; but why should we believe it? What grounds the special obligations that it attributes to medical researchers? This chapter explains that they are grounded as a special case of moral entanglements: obligations that unintendedly arise as by-products of innocent transactions. Researchers’ ancillary-care obligations, more particularly, arise from their having accepted participants’ waivers of privacy rights (rights shielding their bodies, bodily samples, and medical histories) during the informed-consent process. In so doing, researchers have—perhaps unwittingly—taken on special responsibilities that are associated with those rights. These special responsibilities create a morally significant relationship between researchers and subjects and thus ground the special ancillary-care obligation. Rival impartialist accounts, such as Robert Goodin’s vulnerability-based account and Leif Wenar’s least-cost-threat-avoider account, cannot explain our intuitions about this kind of privacy-based moral entanglement.

There have been unsuccessful attempts to use constitutionally entrenched rights claims to challenge criminal prohibitions on assisted suicide in Canada, the United States, and the United Kingdom. These challenges, brought by patients, reached the highest courts in Canada, the United States, and Europe. Their failure makes unlikely — in any major common law or European jurisdiction — the legalization of assisted suicide or euthanasia using challenges based on constitutionally entrenched rights. To determine what we can learn about the use of rights as a mechanism for legal change on assisted dying from the debate which surrounded these cases requires an examination of the use of rights in litigation and debate over the legalization of assisted suicide, including the rights to liberty, autonomy, privacy, dignity, equality, freedom of conscience and religion, life, and property.

This chapter argues that coercive, paternalistic regulations are warranted to address indifference to privacy and data protection concerns spawned by internet and web use; but that even such laws aimed at young children raise serious practical and fairness concerns, pointing to roles for non-legal normative solutions. An analysis of the Children’s Online Privacy Protection Act suggests that paternalistic legislation aimed at older teens and young adults could be justified on grounds friendly to liberal political theory. For mature adults the web is a place to work, socialize and do business. Travel arrangements and shopping for consumer goods takes place online. Many people do virtually all of their banking and bill paying online. They assume common ethics, data security, privacy policies, and laws protect their financial privacy. Internet and web users of all ages give away vast quantities of personal information to internet service providers, website operators, social networking companions and the general public. They give away some of this data intentionally. It often appears that internet/web users are indifferent to privacy. It very least, they over-rely on others’ good will, on posted privacy notices, and on unstable assumptions of trust, reciprocity and civility. Governments readily protects from inadvertent access to adult-themed spam email; and punishes data breaches, identity theft and computer hacking. There may be broader protective roles for public regulation if internet/web users continue to allow others seriously to exploit or harm them and if they make choices that threaten their future flourishing as free moral agents. Voluntary conduct online is exposing data to third-party wrongs and is eroding the public’s taste both for privacy and modest self-restraint. Public regulators could in theory enact strong laws targeting website operators and internet service providers, aimed at benefitting internet/web users. They could even make laws targeting users themselves with strong duties of self-care. It appears that only very strongly coercive measures and censorship could fully protect children and adults. Such measures would be flatly inconsistent with western liberalism. Yet some coercive regulation is possible and justifiable, even though important tasks relating to promoting privacy values are arguably best left to non-coercive schemes and non-government sectors. To address problems of lost privacy resulting from internet/web use, policymakers in EU countries have made their populations the beneficiaries of weakly coercive privacy and data-protection legislation. In the US the Children’s Online Privacy Protection Act (COPPA), a major federal statute which prohibits websites from collecting personal information from children under the age of 13. COPPA is the best example of a willingness to enact paternalistic privacy statutes. COPPA is a case study in justified and unjustified state paternalism in the face of unpopular privacy. The Harriton High School scandal, in which Lower Merion, Pennsylvania public school officials admitted remotely activating school-issued laptop webcams capable of spying on teenagers in their homes, reveals that public authorities can be dangerously reckless with the privacy of youth. Still, assessing COPPA reveals that paternalistic liberty and opportunity-promoting legislation aimed at children, teens and adults is warranted under liberalism.

This chapter begins with a discussion of the important role played by Justice Arthur Goldberg in one of the most famous decisions of the 20th-century Supreme Court, Griswold v. Connecticut. It then considers the New Deal Court's reversal of a broad spectrum of constitutional doctrines from roughly 1937 to 1941. The modern restoration of unenumerated rights is then discussed.

Chapter 1 introduces the issues raised by personality rights in Scots law defined as those rights which protect the non-patrimonial or dignitary aspects of the human person – who a person is rather than what a person has. The chapter also explains the main aim of the book namely how best to develop personality rights in Scots law on a principled basis. The need for such development is most urgent in the case of the right to privacy which forms a gap in Scottish common law that must be filled in order to comply with the European Convention on Human Rights.

The progress of scientific technology means there is an increasing risk that terrorist groups, or even single individuals, will acquire a capacity to construct weapons of mass destruction. It might be possible for a well-organized terrorist group now or in the imminent future to manufacture a nuclear bomb. It is even easier to create biological weapons of mass destruction. The multi-culturalism of current liberal democracies makes it likely that they will contain groups of people hostile to their ideology. To counteract the threat of highly destructive attacks from such groups, liberal democracies have to avail themselves of the sophisticated means of surveillance that modern technology offers. Such surveillance will make these democracies less liberal, but it is possible to justify because there is no privacy right that it infringes. The xenophobia that results from a terrorist attack from some ethnic group is an even greater threat to liberalism.

Unwritten constitutional rights are well established in American law and are best exemplified by the “right of privacy.” The most famous privacy case is Roe v. Wade, although this unwritten right extends beyond abortion and includes contraception, marriage, interracial marriage, and divorce. This chapter explores what constitutionalism as democracy has to say about the unwritten right of privacy. It considers the so-called anti-totalitarian right of privacy that arose from Roe v. Wade and analyzes John Stuart Mill's classic work On Liberty, which elaborates the values of privacy and individuality, “European liberalism,” and a new form of despotism known as “social tyranny”.

An examination of the tension between the right of privacy and the right of freedom of expression is as timely and appropriate a choice as one could find in a study that seeks to understand whether the modern, enlarged concept of human rights can facilitate the judicial resolution of important and emotionally charged social conflicts in a way that produces results that both satisfy our sense of social justice and are compatible with the traditional view of the role of courts. In discussing conflicts between the rights protected under Article 8 and the rights guaranteed under Article 10 of the European Convention in disputes between private parties, one must begin by recognizing that all legal systems enforce some legal protection of what might be called privacy interests. The issue which is now being litigated in Europe is whether, in the name of justice or some other moral imperative captured by the notion of “a right,” a person can be restrained or even punished for publishing information that is not false and that has not been obtained unlawfully or under any actual or implied promise of confidentiality. This chapter discusses two judicial decisions, one by the European Court of Human Rights, the other by the House of Lords, both of which were rendered in 2004; these have become leading cases in this area of the law.

Doctrinalists contend that interpreters can avoid the burdens and responsibilities of philosophic reflection and choice in hard cases by reflecting on bodies of judicial doctrines developed through a process of deciding one case at a time. That doctrinalism offers no escape from philosophic reflection and choice is evident in the different interpretations of virtually any long-standing judicial doctrine, like the “separate but equal” doctrine applied in Plessy v. Ferguson and repudiated in Brown v. Board of Education. This chapter shows that doctrinalism cannot avoid controversial moral and philosophic choices in hard cases. The same is true of judicial “minimalism”, a pragmatic variation on doctrinalism whereby judges would narrowly decide one case at a time. The chapter shows that minimalism itself is a form of philosophic approach, or what Cass Sunstein, minimalism's leading proponent, calls “perfectionism”.

This chapter considers the legal rules that seek to protect the privacy and confidence rights of individuals in the UK, focusing on how these rules operate for children and young persons. It also considers some recent developments that illustrate how digitisation and the ‘database society’ are affecting privacy rights for children. The two most important legal regimes to consider in privacy protection are the data protection law and the law of confidence. The data protection law protects what is known very generally as informational privacy: the right to control what is known about you. The law of confidence, by contrast, prevents a second party from disclosing information which should be kept private between that person and the one who revealed it.

This chapter, one of two chapters (along with Chapter 4) analyzing rights-related state constitutional amendments, examines amendments that have provided more protection for rights than is guaranteed by the U.S. Constitution. These include amendments protecting privacy rights, equal rights amendments that prohibit discrimination on the basis of gender, amendments that provide more protection for the right to keep and bear arms than is guaranteed by the Second Amendment, amendments that limit use of the eminent domain power to take private property for economic development purposes, and Blaine amendments that disallow public support of religious schools and other institutions. Still other amendments have recognized rights with little counterpart in the U.S. Constitution, as with amendments guaranteeing crime victims’ rights and protecting the right to hunt and fish. The chapter chronicles the passage of these amendments and explains why groups and officials turned to the amendment process rather than relying on other institutions such as the judiciary to secure recognition for these rights.

The chapter focuses on national security surveillance by spy agencies. The safeguards afforded for privacy under the law of national security surveillance in the U.S. and the EU appear to be motivated as much, if not more, by national self-interest as by a universal right to privacy. In the U.S., the law has traditionally protected the privacy rights of insiders far more assiduously than those of outsiders. In the EU, there is no power to act internally in the national security domain, but it has certain powers to regulate privacy externally, by setting the terms of intelligence-agency access to EU personal data. There are currently four such EU–U.S. agreements in place. Unsurprisingly, given the bilateral nature of these agreements, they reflect the traditional, self-interested logic of international law designed to further the interests of the parties to the agreement rather than the broader international community.