Two concepts of privacy

The right of privacy is one of the thorniest legal issues today. Courts, legislators, practitioners and academics have all struggled to provide a compelling, consistent, account of what privacy is, why it matters, when it is violated and what the consequences of such a violation should be. Decisions of Canadian courts show that the way in which privacy is characterized differs depending on whether it is a criminal case, an interpretation of a statute that seeks to regulate the use of personal information, or a case in which a person claims damages for an invasion of privacy. As a result, it is difficult to articulate what a right of privacy means, let alone what ‘privacy law’ is. I argue that this is because, at base, the cases reflect two competing concepts of privacy – dignitary privacy and resource privacy. Dignitary privacy is based on a belief that privacy is intrinsically valuable, whereas resource privacy is based on a belief that privacy is simply a tool that has instrumental value. Further, I argue that what drives every real-life privacy claim is a concern on the part of an individual to prevent personal information about him/herself from being used to harm him/herself, and that the right of privacy arises when that harm is unjust. I argue that it is harm that lies at the heart of privacy and that, ultimately, the difference between the two concepts of privacy turns on the determination of when a particular harm is justifiable.