De la multiculturalidad a la “interculturalidad crítica”

Secrecy and privacy are not interchangeable terms. Privacy, in the sense of the right to be left alone, involves the voluntary and secure control of the individual over the communication of

61

Ibid 315.

62 _{Ibid 322-23: citing Wolf v People of the State of Colorado, 338 US 25, 27-28 (1949). ‘The security of} one’s privacy against arbitrary intrusion by the police – which is at the core of the Fourth Amendment – is basic to a free society.’

63 381 US 479 (1965). 64 _{Ibid 484 (1965).} 65 _{Ibid 484 (1965).} 66 _{Ibid 497 (1965).} 67 Ibid 497 (1965). 68 _{Ibid 498 (1965).}

information about oneself. Privacy as defined by Westin in his 1967 thesis69 encompassed four different psychological and physical relations between an individual and others. The four states of privacy are solitude, intimacy, anonymity and reserve.

Communication of the self to others is always incomplete, it is always based on the need to hold back some parts of oneself as either too personal and sacred, or too shameful and profane to express in the particular situation.

The manner in which individuals claim reserve and the extent to which it is respected or disregarded by others is at the heart of securing meaningful privacy in the crowded, organization- dominated settings of modern industrial society and urban life.70

Privacy, in Westin’s theory, performs four functions for individuals in democratic societies: personal autonomy; emotional release; self-evaluation; and limited or protected communication. The four can flow into each other: A right of privacy serves to promote and protect personal autonomy; without privacy there is no individuality.

The human need for autonomy is linked to the development and maintenance of this sense of individuality, and the human desire to avoid being manipulated or dominated by those who might otherwise penetrate one’s innermost secrets. The individuals’ decision of when and how to express their views publicly is a crucial aspect of autonomy.

Limited and protected communication provides the individual with the opportunities needed for sharing confidences and intimacies with trusted friends, secure in the knowledge that the social norms of a civilized society will minimise breaches of confidence. Alternatively the individual may seek professionally objective advice from persons whose status in society provides some guarantee that they will respect the confidentiality of the communication. Privacy is a very important instrument for achieving individual goals of self-realization. Individuals need disclosure and companionship as well as privacy. This balance between privacy and disclosure will be powerfully influenced, by both society’s cultural norms and the particular individual’s status and life situation.71 The basis of mutual trust is one person’s willingness to surrender privacy by sharing information about themselves and another’s responsive willingness to maintain the privacy of the shared information as against third parties.

…the right to privacy is not simply a very important means to highly valued but distinct ends. Rather, privacy is further an end in itself – an essential condition of political liberty and our very humanity. ...Democracy requires individual growth, creativity and responsibility, and an inner zone of personal security which the state cannot penetrate. Privacy provides both that zone of

69 _{See Alan F Westin, ‘Science, Privacy, and Freedom: Issues and Proposals for the 1970’s’ (1966) 66} Columbia Law Review 1003. Westin set out his privacy thesis in Alan F Westin, above n 8.

70

Ibid 1022. 71 _{Ibid 1029.}

impenetrable individuality and the means by which public contributions can flow from responsible individual control over oneself. Privacy both protects private citizens from state control and permits full development of their public selves.72

In a complex legal world, individuals need ‘the guiding hand of counsel’73to make choices in a reflective manner. Society should create conditions which give the person good reason to trust that the consultant will make a bona fide effort to assist the person to make an intelligent, independent choice.74

The whole network of American constitutional rights – especially those of free speech, press, assembly, and religion; securing ‘persons, houses, papers and effects’ from unreasonable search and seizure; and assuring the privilege against self-incrimination – was established to curtail the ancient surveillance claims of government authorities.75 Democratic societies provide substantial amounts of privacy to allow each person widespread freedom to work, think, and act without surveillance by public or private authorities, and to provide similar breathing room for organizations; but they try to strike a delicate balance between disclosure and privacy in government itself.76

4.6 20th century common law recognition of a right to privacy and the balancing of interests

Common law countries have relied on the courts to create and define client legal privilege, and the courts for the most part have used utilitarian rationales in their reasoning, but in many instances they have combined this with the right to privacy. In the words of legal commentator Liam Brown:

Legal professional privilege has been described as a fundamental or human right.77 It is also a ‘practical guarantee of fundamental rights,’78 an ‘important common law right’,79 ‘founded upon the notion of fundamental human rights’,80 and an ‘important human right deserving of special protection’.8182

72 _{Thomas G Krattenmaker, above n 27, 89.} 73 _{Powell v Alabama 287 US 45 (1932).} 74

Edward Imwinkelreid, above n 24, 987.

75 _{Alan F Westin, above n 69, 1044.} 76 _{Ibid 1050.}

77 _{Baker v Campbell (1983) 153 CLR 85 at 116-8: Daniels Corporation International Pty Ltd v} Australian Competition & Consumer Commission (2002) 213 CLR 543, 576 (Kirby J).

78 _{Liam Brown, ‘Justification for Legal Professional Privilege when the Client is the State’ (2010) 84} Australian Law Journal 624, 634: citing Goldberg v Ng (1995) 185 CLR 83, 121 (Gummow J).

79 _{Ibid: citing Daniels Corporation International Pty Ltd v Australian Competition & Consumer} Commission (2002) 213 CLR 543, 553 (Gleeson CJ, Gaudron, Gummow and Hayne JJ).

80 _{Ibid: citing Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49, 92 per} Kirby J.

81 _{Ibid: citing Daniels Corporation International Pty Ltd v Australian Competition & Consumer} Commission (2002) 213 CLR 543 at 576 per Kirby J.

The privilege has also been described in terms of being ‘a necessary corollary of fundamental, constitutional, or human rights’83 with the principle being based on ‘a strong sense that any person charged or in peril of a charge has a fundamental human right to professional advice- which may not be effectively given if facts are withheld.84

The decision as to whether the privilege should be absolute thus providing certainty or whether it should be conditional, involves a number of factors:

What effect the choice will have on administrative cost-savings, restraint of judicial discretion, and encouragement of communications; a determination of what effect it will have on the rule’s under – and overinclusiveness; and a determination of how normatively important these effects are. All these factors must be qualified by the effect of any gap between the actual and apparent uncertainty of the privilege rule. Thus, the choice of the form of the privilege is largely independent of the substantive rationale for the privilege.85

Legal commentator Kennedy notes the role of certainty in the law.

Certainty, on the other hand, is valued for its effect on the citizenry: if private actors can know in advance the incidence of official intervention, they will adjust their activities in advance to take account of them. From the point of view of the state, this increases the likelihood that private activity will follow a desired pattern. From the point of view of the citizenry, it removes the inhibiting effect on action that occurs when one's gains are subject to sporadic legal catastrophe. 86

Every exception to the rule reduces the generality of the rule, and increases uncertainty, diminishing limits on judicial arbitrariness, and increasing administrative costs.87 Maintaining a certain rule when it is only slightly preferable to an uncertain rule may lead to under and over inclusive effects thus eroding the certainty of the rule.

A qualified privilege may provide more certainty to clients than absolute privileges that are subject to numerous exceptions. …Broad exceptions may cause more of a client’s communications to be disclosed than if the privilege were qualified.88

The simplistic notion that utilitarian justified privileges have an overriding concern for certainty, and that humanistic justified privileges are indifferent to certainty and would function as efficiently under a case-by-case rule, is not necessarily correct, the importance of certainty becomes a matter of degree and varies with each type of privilege.