Navigating the Dataverse: Privacy, Technology ... - The ICHRP

not been questioned”. 27 That is to say, in public, issues of common concern that had
previously been subject to a “monopoly of interpretation” by the overarching authorities
of church and state could now be questioned and criticised. Fourth, to permit the public
to reach rational decisions and to enable those decisions to be known and endorsed by
the public at large, information needs to circulate. The public has a right to know! The
public sphere must, therefore, be transparent.
These principles (equality, rationality, universality and transparency) provided ground
rules and operating conditions for the ideal public sphere. They also framed the relevant
principles of law for the protection of privacy. 28 In Britain, the existence of similar
constitutional safeguards is made progressively explicit in the writings of Locke, Burke,
Bagehot, Dicey and, perhaps most of all, John Stuart Mill. Habermas’s description of the
relevant constitutional principles bears quoting at length.
Equality, rationality, universality and transparency provided ground rules and
operating conditions for the ideal public sphere.
A set of basic rights concerned the sphere of the public engaged in a
rational–critical debate (freedom of opinion and speech, freedom of press,
freedom of assembly and association, etc.) and the political function of
private people in this public sphere (right of petition, equality of vote, etc.).
A second set of basic rights concerned the individual’s status as a free
human being, grounded in the intimate sphere of the patriarchal conjugal
family (personal freedom, inviolability of the home, etc.). The third set of
basic rights concerned the transactions of the private owners of property
in the sphere of civil society (equality before the law, protection of private
property, etc.). The basic rights guaranteed: the spheres of the public realm
and of the private (with the intimate sphere at its core); the institutions and
instruments of the public sphere, on the one hand (press, parties) and the
foundation of private autonomy (family and property), on the other; finally,
the functions of the private people, both their political ones as citizens and
their economic ones as owners of commodities. 29
The assumptions of an ideal public sphere were realized in law and reflected in modern
constitutional arrangements, which established many (if not all) the fundamental “rights”
that are today referred to as “human rights”. It is assumed that these rights are wielded
by private persons, whose privacy and autonomy must be conserved in law.
If we broadly accept Habermas’s account (which, for this Discussion Paper, we do),
privacy cannot be regarded either as wholly “natural” or entirely self-created, nor is it
marked primarily by withdrawal (the “right to be left alone”). 30 On the contrary, privacy
must be viewed as an ideal that values private autonomy not as an end in itself but as
a necessary component of public life in a modern state. Privacy is not universal in the
usual sense – but it may be universalised.
27 Habermas (1994), 36–37.
28 Habermas (1994), 52–56; 79–84.
29 Habermas (1994), 83.
30 This is the formula famously put forward by Louis Brandeis and Samuel Warren in an 1890 article. See
Chapter 5, below.
10 Navigating the Dataverse: Privacy, Technology, Human Rights