Ley Orgánica de Junta Parroquiales Rurales

What is needed, in short, is an account of privacy that (1) recognizes privacy as a

freestanding right or concept, not reducible to rights to persons or property, or subject to limitation in the service of economic goals; and that (2) indicates what makes privacy important. In my view the dignity/human rights approach to privacy can accomplish both of these tasks. At its core, this approach is a more sophisticated version of the right to be let alone—the main point being that individuals are to be treated as ends in themselves rather than as means to furthering another person’s or society’s goals.589 In fact, the idea that invasions of privacy constitute offenses to dignity can be traced back to Kantian times.590

One strong advocate for the dignity/human rights approach to privacy is Edward J.

Bloustein. His method of highlighting the importance of dignity in respect to privacy is to criticize Prosser, the theorist advancing the claim that privacy should be conceptualized as a tort.591 Essentially, Bloustein rejects Prosser’s analysis and argues that assaults on privacy have been transmuted into the torts of defamation, infliction of mental stress, and misappropriation—using this analysis, there is no new tort of invasion of privacy, but only new ways of committing old torts.592 Bloustein asserts that Prosser’s analysis leads to the social value of privacy becoming a composite of the value our society places on protecting mental tranquility, reputation, and intangible forms of property.593

Bloustein insists that since Warren and Brandeis there has obviously been something unique about privacy, even if it has never been completely set out; the most significant indication of the interest is that it protects against “inviolate personality”, which he

589 _{Chris D L Hunt, “Conceptualizing Privacy and Elucidating Its Importance: Foundational Considerations}

for the Development of Canada's Fledgling Privacy Tort” (2001) 37 Queen's LJ 167 at 203−204.

590

Immanuel Kant, Critique of Pure Reason, translated by Marcus Weigelt (London: Penguin Books Ltd, 2007) at 172−571; Anthony Kenny, A New History of Western Philosophy (Oxford: Oxford University Press, 2012) at 497–751.

591

Edward J Bloustein, Individual & Group Privacy (London: Transaction Publishers, 2003) at 1−46. See the above discussion regarding Prosser supra note 529.

592 _{Bloustein, supra note 591 at 4–5.} 593_{Ibid at 5, 9–10.}

interprets to be an individual’s independence, dignity, and integrity.594

He maintains that this value in privacy is a person’s essence as a unique and self-determining being.595 Against this, it might be observed that Bloustein creates the same problems as Warren and Brandeis in terms of not adequately defining critical phrases that form the foundation of the argument to justify his point. One may ask how Bloustein comes to understand the meaning of “inviolate personality” since he commits the same blunder as Warren and Brandeis by simply deciding that the phrase means independence, dignity, integrity, and the essence as a unique and self-determining being without further elaboration to support the contention.

Yet, when discussing the difference between small-town gossip and the emergence of newspapers and other mass means of communication, Bloustein asserts that it is only with the emergence of newspapers and other mass means of communication that degradation of personality by the public disclosure of private intimacies become a legal significant reality.596 It is only at this point that the everyday threat to personal dignity and individuality is realized.597

It is curious that Bloustein distinguishes between different levels of intrusion that can be involved when invading privacy—Bloustein is forward-thinking in that he is able to imagine that human dignity has the potential to be affected in different ways depending on types of technology that are used. He is able to envision that small-town gossip is not the same thing as newspapers and other mass means of communication.

Ultimately, Bloustein states that the common conceptual character of privacy that runs through all the cases he reviews involves the injury to individual freedom, personality, and dignity—in stark contrast to Prosser, Bloustein says that he can identify a single tort with a common thread.598 In fact, he maintains that an intrusion on privacy threatens our

594_Ibid. 595 Ibid. 596_{Ibid at 23.} 597_Ibid. 598_{Ibid at 39.}

liberty, just as an assault, battery, or imprisonment threatens our person.599 When

referring to electronic forms of eavesdropping and the electronic storage of personal data, Bloustein maintains that, while the applicable torts may differ, the social interest at issue in all cases is the preservation of individual dignity, as he so declares: “The common thread is dignity”.600

At this point, it is helpful to understand what “dignity” actually means. It is another elusive term, which is defined as, “the state or quality of being worthy of honour or respect”; it comes from the Latin word, “dignitās”, from “dignus”, meaning “worthy”, and “deserving”.601

Donna Hicks states that dignity is an attribute that we are born with; plainly put, it is our inherent value and worth.602 She distinguishes between dignity and respect; while we are all born worthy, we must earn respect.603 She also identifies several ways in which dignity can be expressed, some of which include acknowledgment, safety, fairness, understanding, and giving others the benefit of the doubt.604

According to Hicks, the inevitable result of treating people with dignity is the creation of enhanced trust.605 In fact, it is established that trust is essential for organizations to work properly, for commitment levels to remain high, and for individuals to constantly be willing to make a positive contribution.606 What is more, trust between managers and employees is confirmed to be the primary defining characteristic of the very best

workplaces.607 She states that, when trust vanishes in the employment relationship, there are feelings of violation and betrayal that lead to a complete breakdown in the

599

Ibid.

600_{Ibid at 44–46.}

601 _{Stenson, supra note 483 at sub verbo “dignity”; Lecturer & Morwood, supra note 484 at sub verbo}

“dignus”.

602

Donna Hicks, Leading with Dignity: How to Create a Culture that Brings out the Best in People

(Michigan: Yale University Press, 2018) at 2.

603_Ibid. 604 Ibid at 16–17. 605_{Ibid at 93.} 606_{Ibid at 93.} 607_{Ibid at 94.}

relationship.608 In fact, with breakdowns in trust in the employment relationship, the human reaction is immediate and can lead to feelings of disgust.609

Ari Ezra Waldman states that trust is a social norm of interactional propriety based on favorable expectations of others’ behaviour.610

Moreover, he contends that trust is a significant factor in our decisions to share our personal information since it reduces the vulnerabilities associated with sharing.611 He maintains that “trust is at the core of our expectations of privacy”.612

Ultimately, Waldman argues that the relationship between privacy and trust is functional, in that privacy builds trust, and trust yields disclosure.613 In fact, he asserts that if we want privacy to thrive in a world that requires significant disclosures to participate in modern life, we need sharing in some contexts to be compatible with privacy.614 When doing so, it is important to recognize that many disclosures are not purely voluntary, and privacy that factors in trust can rebalance power relationships; for example, the power dynamics of doctor-patient relationships are situations where disclosure is necessary, but the trust norms that have been developed over time through ethics and duties of loyalty operate to soften the disclosure risks so the information holders are less vulnerable.615 In the workplace, trust allows individuals to deal with uncertainty and complexity, take risks, cooperate with others, and create order in chaos, because the norms we expect others to follow, namely confidentiality and discretion, are essential for creating circumstances for sharing information.616 Consequently, the existence of trust in work relationships can lead to outperformance of competitors, increased efficiency of teamwork and cooperation, and an increase in the level of dedication to a company

608_{Ibid at 95.} 609 _{Ibid at 95−96}

610 _{Ari Ezra Waldman, Privacy as Trust: Information Privacy for an Information Age (Cambridge:}

Cambridge University Press, 2018) at 50.

611_Ibid. 612_Ibid. 613 Ibid at 61. 614_Ibid. 615_{Ibid at 61–62, 73.} 616_{Ibid at 74.}

mission; most importantly, trust helps individuals connect and share more meaningful interactions.617 Privacy provides benefits to both individuals and corporations because privacy is bound to trust, and this is a fundamental requirement in life.618

George Kateb states that, while human dignity is perceived to be the basis for human rights, not many understand what dignity is and why it matters for the claim to rights.619 He argues that the idea of human dignity is something that is necessary to the theory of human rights; he insists that human dignity must be affirmed.620 In fact, he explains that, “the idea of human dignity not only serves to help defend the theory of individual rights but also gives a perspective on the dignity of the human species”.621

He begins with the assumption that the dignity of every human being has a status that is equal to that of all others.622 Consequently, equal status means that no one person is better than another, despite the fact that individual talents and innate abilities may vary.623 In particular, such variations in humans are irrelevant to human status.624

Alexandra Rengel draws on natural law and applies the dignity/human rights approach to the concept of privacy, asserting: “Privacy is an essential human need”.625

According to Rengel, humans need to know that they can keep some things secret from others, and the right to have secrets is so embedded in human nature that it would be very difficult to imagine satisfying human interactions without the ability to keep certain things secret from each other and to lead lives unmonitored by others.626

Rengel argues that the need for humans to have a certain degree of privacy is natural, and due to this intrinsic need, privacy is recognized in a social and legal sense in most

617_Ibid. 618_{Ibid at 75.}

619 _{George Kateb, Human Dignity (Cambridge: Harvard University Press, 2011) at 1.} 620 Ibid at 5. 621_Ibid. 622_{Ibid at 5–9.} 623 Ibid at 9. 624_Ibid.

625 _{Alexandra Rengel, Privacy in the 21st Century (Netherlands: Koninklijke Brill, 2013) at 1.} 626_Ibid.

cultures.627 She stresses the importance of acknowledging the intrinsic and natural quality of the human need to privacy.

Lastly, James Griffin provides further clarification on the underlying reasons for the existence of human rights.628 Griffin describes human rights as rights we have simply by virtue of being human.629 He suggests that the Latin word, “ius” is a “right” that an individual has and that derives from the natural law that all human beings are, in a very particular sense, equal.630 What is more, the link between freedom and dignity has been carried through to the present.631 Griffin maintains that human rights are currently seen as protections of our normative agency, or personhood.632 However, Griffin states this is not exactly clear where the line should be drawn; he proposes that to answer this question, it is necessary to consider whether the right is too complicated to achieve its goal, or too demanding, and also how human beings in societies actually work and consider the practicalities.633

Griffin suggests that it is possible to make a case for a human right of privacy, because without privacy, autonomy would be threatened.634 According to Griffin, we are social animals and we seek acceptance by the group; in fact, it is rare to swim against strong social currents.635 He contends that if our deliberation decisions about how we live were open to public scrutiny, we would self-censor and act in self-defence.636 Griffin states that autonomy is a feature of deliberation and decision, and liberty is a feature of action concerned with pursuing one’s aims without interference.637

Notwithstanding this helpful clarification of human rights, Griffin subsequently states that, while informational privacy is not the ideal name given that it is too narrow, current

627

Ibid.

628 _{James Griffin, “The Human Right to Privacy” (2007) 44 San Diego L Rev 697.} 629_{Ibid at 697.} 630_Ibid. 631 Ibid at 698–699. 632_Ibid. 633_{Ibid at 699–700.} 634 Ibid at 700. 635_Ibid. 636_Ibid. 637_Ibid.

appeals to the human right of privacy are too broad.638 He takes a peculiar turn and proceeds to argue that human rights can be reduced to two rights when privacy claims are involved: the right to informational privacy, and the right to liberty.639 This strategy attempts to negate the approach initially taken, namely drawing on an understanding of human rights in order to argue for a right to privacy.

One may challenge this proposal and refer to it as another case of déjà vu, where a theorist attempts to divide the concept of privacy into a certain number of rights that are to be protected in the courts. This fragmentation of the concept of privacy is just another example of what takes place in Prosser’s analysis. One may introduce another challenge: Griffin writes from the privacy perspective of dignity/human rights, but then highlights the necessity of considering whether the right is too complicated to achieve its goal and too demanding; he questions how human beings in societies actually work and considers the practicalities. Griffin appears to be struggling with how to apply this theory in a practical manner, and his solution is to divide privacy into informational privacy and liberty.

Perhaps this is because the theory of dignity/human rights appears to run into roadblocks when realistically converting broad, vague, utopian ideas of what “should” be into what can be done realistically. Indeed, this is one of the main criticisms of the theory—the concept of dignity is too broad to be practical and lacks detail, and this prevents any kind of meaningful application. Another roadblock is that the theory uses complex terms such as personality and liberty without providing any solid explanation. Certain terms are also conflated with dignity, including autonomy and personality. Another roadblock that weakens the theory is that some of these terms pertain to competing interests, and the theory does not explain how competing interests can be balanced or dealt with in any way.

While at first glance there is concern about realistic application of this theory, it is important to remember that the use of ambiguity in the language of human rights enables

638_{Ibid at 702–703.} 639_{Ibid at 717.}

a more organic and flexible approach for understanding privacy, adapting to the evolving society, and balancing competing interests.640 Given that privacy is fundamental and something to which individuals are equally entitled by virtue of their status as persons, it is critical to keep in mind that this approach enables a liberal and purposive interpretation where privacy rights receive a broad interpretation and exceptions are narrowly

construed.641 As a starting point, the dignity/human rights approach appreciates the inherent value and worth of all individuals.

Practically speaking, if the dignity/human rights perspective is to be the prevailing approach in Canada, then it would follow that a core societal value is that privacy is to be treated as an end, and Canadians deserve to be treated with dignity in a way that respects self-determination, autonomy, self-respect, and personality. It would also follow that the privacy of Canadians is to be regarded as fundamental and not something that can be taken away, given up, or used as a means to manipulate or gain value. Accordingly, using this theory, individuals (and their personal information) would therefore need to be respected so that their innate worthiness is maintained.

3.3

Conclusion

As can be seen from the above analysis, even when using a neutral investigation of privacy as a starting point, most theories of privacy are non-reductionist. By this I mean that they appreciate that there is a coherent value to privacy, that there is something that is inherently unique and valuable that cannot be covered off by some other law or set of laws. All the same, many non-reductionist theories fall short of sufficiently answering the question, “What is privacy, and why is it important?” Many of the theories, when

combined, could create a more complete picture of what privacy involves, but if this is what is required in order to disentangle the concept of privacy, than these theories are neither sufficient nor necessary answers to the question.

This Chapter explored the strengths and weaknesses of selected theories of privacy.

640 _{Ruth Sullivan, Sullivan on the Construction of Statutes, 5th ed (Markham, Ontario: LexisNexis Canada}

Inc, 2008) at 255−297, 497−507.

The reductionist theories are the most problematic as they are lacking in depth. The cluster-of-rights perspective adopted by, for example, Thomson, is unconvincing. The analysis is shallow, overly skeptical, and short-sighted. Posner’s economic theory of privacy treats information as a commodity and does not acknowledge that some may not appreciate what is being sacrificed in an exchange until it is too late. In this cold and mechanical analysis, the main motivation of privacy is to hide information, manipulate others, or gain something in exchange for value and efficiency. It leaves minority groups and vulnerable citizens behind.

Many of the non-reductionist theories are also problematic, but for different reasons. Approaches that adopt the idea that invasion of privacy is a tort uses undefined terms, operates from a dystopian view of technology, and links privacy to morality and justice without explaining why it is a good idea to do this. This viewpoint comes across as declaratory rather than analytical. Some advocates for the tort attempt to partition the concept of privacy into separate rights without providing enough explanation to justify the action. This also results in the concept of privacy becoming nothing separate in itself that is worth protecting.

Although the feminist theories may shed light on the interests of vulnerable citizens, they do not provide any real solutions to the problems that they identify, while the control- over-information perspective fails to identify the types of information that are within a person’s control and is consequently too vague. Certain words such as “control” and “personal information” are left undefined. The problem is that even if one adopts this perspective it is unclear how this theory differs from the economic theory, since a person can decide when to allow someone to become aware of certain information within a person’s control—typically when a person wants something in exchange. Also, there are no clear limits especially in the case of sensitive persons.

While the pragmatic, contextual approach offers a realistic, flexible, and open