Abstract
Drawing on Durkheim, Simmel, and Luhmann, this article grounds the polysemic character of privacy and its contingent legal determination in the functional differentiation of social communication systems. It demonstrates a previously overlooked common denominator among privacy conflicts and an emergent principle for their legal resolution. Case-law examples from the US Supreme Court and the European Court of Human Rights show how functional relevance turns ‘private’ events into ‘public’ ones, or ‘reasonable limitations’ of privacy into ‘unwarranted violations’, and vice versa.
Keywords
Increasingly recognized as an irreducible ground for claims-making, legislation, and adjudication around the world,
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the right to privacy has eluded adequate theorization. A glimpse of the challenge is provided by the European Court of Human Rights’ (ECtHR) interpretation of ‘private life’, as protected by Article 8(1) of the European Convention on Human Rights. According to the Court, private life, in addition to:
… elements such as gender identification, name, sexual orientation and sexual life … [includes] a right to identity and personal development and the right to establish and develop relationships with other human beings and the outside world … even in a public context … [and perhaps in] activities of a professional or business nature.
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It is not always clear where and when legally valid expectations of privacy exist. Nor is it obvious how privacy claims would fare in the legal balance against other legally recognized interests, such as promotion of public morality, national security and crime prevention, or freedom of expression. If privacy protects homosexuality and one’s right to establish relationships with others, does it also confer a right to same-sex marriage? If it grants a right to establish relationships with the outside world, does it also confer a right to sever the ties: a right to die? Which activities are essential to identity and personality formation? Does foxhunting qualify? Why?
Legal, political, and philosophical approaches to privacy have tried to clarify such ambiguities by devising taxonomies and typologies, addressing conceptual differences between privacy and other rights (e.g. equality, property, autonomy, liberty, dignity, intimacy, anonymity, confidentiality, seclusion, secrecy, and security), and offering normative evaluations of privacy policy and adjudication in various jurisdictions.
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Having long pondered the matter, Dean Robert Post sums it up succinctly:
Privacy is a value so complex, so entangled in competing and contradictory dimensions, so engorged with various and distinct meanings, that I sometimes despair whether it can be usefully addressed at all. (2001: 2087)
A persistent challenge has been the changing meaning of privacy from one social context to the next, not least in the eye of the law. Ironically, to date, contributions of sociology, a discipline concerned with social contexts of meaning-constitution, have been marginal. Despite valuable analyses of privacy from social-psychological, institutional, or network perspectives, 4 we are yet to account for the multiplicity of meaning and contingent legal determination of privacy in terms of transformation of societal structures.
Using Warren and Brandeis’ (1890) formative conception of privacy as a reference point, this article draws on Durkheim, Simmel, and Luhmann to ground the rise and evolution of the right to privacy in dynamics of functional differentiation. Shifting the debate from the ‘individual/society’ dichotomy to the boundary tensions between functionally differentiated social systems, it demonstrates functional relevance as the excluded middle in the ‘public/private’ binary in both privacy conflicts and their legal resolution.
Privacy as Selective Self-presentation
Warren and Brandeis’ The Right to Privacy (1890) is often cited as the first call, in the USA, to recognize privacy as a distinct and irreducible right. 5 Treating privacy as a general right to the ‘immunity of the person’, they based the necessity of its legal recognition on the growing importance of ‘solitude’ and ‘retreat’ in the face of increasing ‘intensity and complexity of life’. This, of course, was not a call for creation ex nihilo. The common law had institutionalized some aspects of privacy, albeit not in that name. Over time, the meaning of protection of the individual in his person and property had been expanded, from initial protection of the body and tangible property against battery, destruction, and theft, to one’s spiritual, emotional and sensory nature, reputation, goodwill, confidence, trade secrets, trademarks, and products of the mind. But advances in technology and sensationalist journalism, Warren and Brandeis believed, had rendered such protections obsolete. In a society of strangers with rapidly changing communication technology, ‘whisper[s] in the closet’, could be ‘proclaimed from the house-tops’. A new foundation was required to extend previously existing protections to ‘personal appearance, sayings, acts and personal relations, domestic or otherwise’. The individual required protection for her ‘inviolate personality’, not only in contractual and confidential relations, but also ‘against the world’ (1890: 207, 196, 195, 213, 205).
While Warren and Brandeis are often remembered for their emphasis on privacy as a ‘right to be let alone’, they perhaps provide the first conception of privacy as a communicative right: a right to selective self-presentation; to control how, when, where, and to whom particular aspects of one’s life and personality are communicated. Since then, a persistent challenge has been to find this principle of selection, explain its variation from one social context to the next, and find a legal ground for its control by the individual. This article seeks the answer in structural transformations of modern social communications and legal recognition thereof.
Moral Individualism and Division of Labour
Durkheim did not explicitly address the question of privacy and its relation to social communication, but he initiated inquiry into structural conditions that augment respect for individual rights in modern times. While moral and political philosophy sought the explanation in enlightenment and economics fell back on satisfaction of individual needs, Durkheim saw ‘moral individualism’ as a ‘collective representation’, a reality sui generis. To understand its form and content, he insisted, we had to examine the constitution of society, not the state of individual consciousness.
That promising beginning, however, did not yield adequate description of the underlying structural transformations. Committed to an hypostatized conception of society, Durkheim downplayed the radical implication of functional differentiation. He noted that ‘collective consciousness’ began to lose its religious content, and temporal life was gradually released from rigid codes of conduct, as increasing size, density, and division of labour differentiated economy, politics, and other societal functions from religion. Yet, he still saw society as a moral unity. Making an analogy between our ‘feeling of horror’ at the sight of an attempt on an individual’s ‘life … liberty … and honour’, and that of a ‘believer’ seeing his ‘idol profaned’, he treated ‘moral individualism’ as a secular proxy for religion: ‘the only tie which binds us all to each other’ (1973[1898]: 46, 53).
Acknowledging other ‘collective representations’, i.e. other ways that ‘society conceives of itself and the world that surrounds it’ (1982[1901]: 40), Durkheim did not see them on a par with morality. He failed to account for the rise of ‘moral individualism’ in a context of multiplicity of our societal bonds, and absence of a unified hierarchy among them.
Secrecy and Group-affiliation
Simmel helps us take two important steps in that direction. Extrapolating from his analysis of ‘secrecy’, we can ground the increasing significance of privacy in the fragmentary character of modern individuality, and account for this fragmentation in terms of transformation of the pattern of group-affiliation (Simmel, 1950: 330). While group-formation is possible only through reduction of individuals to exemplars of abstract categories, no category can fully represent an individual. Indebted to each category, the individual eludes them all. Thus, as concentric group-affiliation, based on membership in corporate bodies, is replaced with participation, ‘as an individual’, in intersecting groups, partaking in a group becomes simultaneously a confrontation with it (Simmel, 1955[1922]: 138–40). Amidst ‘relentless’, ‘one-tracked and monopolistic’ claims and counterclaims of heterogeneous groups (Simmel, 1950: 121), unique personalities can survive only in a play of shadow and light, rather than full publicity.
This, of course, is not a solitary achievement. Smooth navigation in this intricate web requires generalized tact and discretion; collective respect for the ‘ideal sphere’ surrounding ‘every human being’ (Simmel, 1950: 321). As requirements of courtesy, civility and discretion, initially developed for sociability among royal courtiers of diverse social origins, expand to the rest of society (Elias, 2000[1939]), respect, honor, and dignity, initially privileges of high social status, become generalized expectations. Today everyone expects respect for their public face, as everyone is expected to have one worth protecting (Whitman, 2004). The distinction between ‘back-stage’ and ‘front-stage’ and the arts of impression management (Goffman, 1959) become universal conditions of sociation.
Simmel’s second, often neglected, contribution to this debate lies in his emphasis on the autonomy and objectification of cultural forms, the background against which secrecy, as a social form, ‘receives and releases contents’ (1950: 335). This development takes us beyond secrecy to privacy; from conflicting claims of intersecting groups to incommensurability of social worlds.
Akin to Kant’s a priori categories of cognition, cultural forms function as gestalts for selection of certain elements from the raw material of experience and their retention as recognizably meaningful events. Objectification of these forms and their independence from subjective states of individual consciousness ‘decisively differentiate[s] the quanta of knowledge and ignorance necessary for confidence’ in modern society:
The modern merchant … the scholar … the leader of a political party … all these know … only exactly that and no more about their partner which they have to know for the sake of the relationship they wish to enter. (Simmel, 1950: 319)
This decisive differentiation has become possible by the ‘fundamental circularity’ of cultural forms in modern times. Each form has become a world unto itself, able ‘to shape the totality of contents into a self-contained, irreducible world of experience’ (Levine, 1971: xxxiii, xvii). Legal precepts are valid only by reference to other legal precepts, scientific propositions with reference to other scientific proposition, etc. If each group sees the individual ‘as if through a veil’ (Simmel, 1971[1908]: 11), one may say each cultural form casts a unique veil upon the entire world.
Thus, what we have to know and ignore about one another varies, not only as we move from one group to another, but also as we shift our frame of reference from the world of economy to that of science or politics. It is by means of attribution of events to these worlds that social contexts are made meaningful, and actors and groups, as well as their motives and interests, are constituted (see Mills, 1963). For example, differential attribution of abortion to the healthcare system, religion, or the economy yields radically different constitutions of involved actors, from pregnant women and physicians, to funders and bombers of abortion clinics. Privacy conflicts and their legal resolution should be examined against a backdrop of functional differentiation and interpenetration of these worlds.
Privacy and Functional Differentiation
Luhmann’s critical contribution to this task is his attention to the most fundamental problem of social communication: selection. He rightly notes that since the horizon of possible meanings is always broader than any communication can actualize, even the simplest and most fleeting social communication requires a principle for self-selection and boundary-formation, a standard by which it can set itself apart from its environment. The challenge of social communication, therefore, is to manage the relation between a ‘selectively restricted order and the openness of other possibilities’ (Luhmann, 1990: 25).
This insight allows us to ground the polysemic character of privacy in the divergence of principles of selection among functionally differentiated social communication systems, both ‘vertically’ and ‘horizontally’. No longer required to implement organizational programmes or abide by societal expectations, interaction systems allow forms of intimacy irreconcilable with organizational or societal expectations; organizations stabilize improbable modes of collective conduct without either societal consensus or moral commitment of their members; and, free from requirements of mutual perception or specific criteria of membership, societal systems include all communications that employ their system-specific codes for communication selection (Luhmann, 1982: 77–9).
Not only can interaction systems, organizations and societal systems operate without regard to communicative requirements of one another, but also, and, more importantly, each societal system can select and connect communications without considering standards of other societal systems. In fact, increasing complexity of social communication in modern times is due to the absence of a unified hierarchy among societal systems. While communications in one system can induce reaction in others, the self-referential operation of system-specific codes excludes any simple input/output relation between societal systems. Politics no longer needs divine justification, nor does religion demand allegiance by the sword; neither can set the frame of reference for the economy, art, or science. Legal immoralities and moral illegalities emerge alongside blasphemous truths and false articles of faith.
Variously described as liquid, reflexive or high modernity, late capitalism or postmodern condition (Bauman, 2000; Beck et al., 1994; Jameson, 1991; Lyotard, 1984), this structural condition dates at least to pre-revolutionary France. The response to the question: ‘who is specially authorized to speak on behalf of society?’ has long been: ‘many and therefore no one’ (Luhmann, 1987: 103). And here lies the fundamental reason for the polysemic character of privacy: multiple and heterarchic system-references for every event and contingency of the public/private distinction pertinent to each system.
For example, if an event is made meaningful using the code ‘legal/illegal’, it belongs to the legal system, and thus can trigger further events in that system, even if it has taken place in the intimacy of one’s bedroom. Observed in terms of its newsworthiness or entertainment potentials, the event can activate further events in the media. If the involved parties require medical care, and the code ‘health/illness’ is evoked, then further events in the healthcare system ensue. As the attribution of events shifts from one system to another, the principle of communication selection changes; so does the scope of one’s privacy, as control over selective self-presentation.
Therefore, to theorize privacy with an adequate range of empirical applicability one must move from first-order observations, concerning what privacy is, to second-order observations concerning how privacy is observed. Here observers are neither individual persons, with unique dispositions and preferences, nor organizations with specific membership criteria. Notwithstanding the worth of such investigations, the primary focus of this article is societal systems and their universally applicable ‘codes’, which can constitute events and actors and cut across organizations and networks.
The contention here is that privacy conflicts arise when an event in one social system becomes relevant, arguably without justification, to selection of communication in another system; e.g. when love-affairs become thematic in evaluating professional competence; health conditions become relevant to securing a bank loan; or sexual orientations become relevant to employment. The public or private nature of communication is not determined by its content, i.e. whether it involves secrets, embarrassing or confidential information, or merely trivial daily transactions; rather, by its functional relevance to the social system in question. Thus, if the love-affair involves one’s subordinate, the health condition undermines one’s ability to be party to a contract, and the employer happens to be the Catholic Church, the system-reference and functional relevance of communication change and so do the legal contours of privacy.
Functional differentiation excludes seamless transmission of information between social systems. Equally impossible, however, is their total disjunction. Interaction systems emerge against societal backgrounds and society would be impossible without interactions. The economic system cannot fully function without laws of contract and property, nor can the political system without the mass media and opinion polls. Yet, there is no societal chain of means and ends among these differentiated systems, only a loose degree of compatibility (Luhmann, 1982: 79). The right to privacy, this article contends, is a principle for such compatibility. Here lie both its irreducibly societal functions and its relationship to the right to equality.
Societal Functions of Privacy and Equality
Again, Luhmann’s account of the emergence of the institution of rights sets the stage. Briefly, as long as social inclusion is automatically guaranteed by virtue of fixed social position, individuals are not ‘rights-bearing entities’, and the institution of human rights has no place in regulating social life. Dissolution of the stratified order puts an end to homogenous, total, and ineluctable social inclusion and exclusion. ‘It is no longer groups of people that are being differentiated but types of communication’ (Verschraegen, 2002: 264, 266, italics in original).
The institutions of subjective, civil, and later human rights emerge in this context. They function as principles of social inclusion and safeguards against external interference with operations of newly emerging functionally differentiated societal systems. In fact, a ‘radical privatization’ plays an essential role in transition to modernity. Leaving to the individual certain decisions concerning property, ultimate belief, occupation, and marriage undermines ascription of entire persons or households to only one stratum and further compartmentalizes economy, religion, politics, and family. Thus, capital accumulation can continue with no regard to religious or moral expectations about surplus distribution or fear of arbitrary political acquisition (Luhmann, 1982: 129). Private rights are also essential to functional differentiation of the political system and centralization of the state, as they prevent politicization of religious and economic activities (Thornhill, 2011: 164–7).
If assigning certain decisions to the private realm initially undercut the stratified order and paved the way to functional differentiation, today privacy is necessary to protect differentiated systems from their own totalitarian tendencies. In other words, functional differentiation is both a condition of and a threat to privacy. Without the possibility of partial and contingent inclusion in societal systems, claims-making in terms of privacy would be unthinkable, as in stratified societies or under totalitarian and theocratic regimes. Yet, functional differentiation poses serious threats to privacy on its own. The universal scope of each societal system renders every event potentially relevant to it. But each system can code the event only in one dimension of its various possible meanings. The political system, economy, science, and mass media can reduce every event to matters of power, money, truth, or news and entertainment, respectively.
Thus, as a constitutionally guaranteed right, privacy can be seen as a ‘self-limitation of politics’. Prohibition of political interference in legally recognized private spheres relieves the political system from decision-making on a wide range of issues, which could only be implemented through crude coercive measures (Verschraegen, 2002: 272). Privacy of ultimate beliefs and intimate relations, for example, in addition to protecting the individual, unburdens the political system from surveillance of populations in their homes and inquiry as to the nature of their thoughts and most of their intimate relations. Other societal systems, such as the economy, science, and education can continue their operations without conditioning their information selection on individual decisions in those realms. 6
Yet, there is a caveat. Despite crumbling of the old stratified order, a peculiar asymmetry persists between social inclusion and exclusion. While further advantages of partial social inclusions are only probable, contagious and totalizing effects of some social exclusions are certain (Luhmann, 2004: 489). Abiding by the law does not ensure employment, but a criminal conviction puts some career options forever beyond one’s reach. The right to equality limits this contagious effect by providing a ‘principle of selective indifference’ (Verschraegen, 2002: 278, italics in original). It promises that in the process of social inclusion only functionally relevant communicative capacities are considered. Thus, all with the ability to pay expect equal access to the market; all within a certain jurisdiction expect equal access to the law; and all with the ability to learn expect access to public education; regardless of faith, political affiliation, skin-color, gender and the like. Of course, contracts go to lowest bidders; prior convictions affect sentencing; and university admissions depend on examination scores; at least, that is the expectation.
It is no accident that privacy conflicts arise as the right to equality expands to formerly excluded groups. 7 Some practices, once considered abnormal, immoral, superstitious, irrational, or illegal, are now treated as expressions of taste or cultural difference. At the same time, personal information has become available to others’ fingertips as never before. The 19th-century world of ‘secrecy’ and ‘prudery’, the world of ‘closed doors and drawn blinds’ has given way to a world of ‘one-way mirrors’ and ‘all-seeing eyes’ (Friedman, 2007: 272). As the possibilities of secrecy for individuals vanish, concerns for privacy soar. At the same time, the more robust are privacy protections, the less secretive personal information may become, as has been the case with political and religious beliefs, abortion, and homosexuality. Stabilized expectations of equality come to rely less on secrecy and more on privacy; i.e. system-specific public/private distinctions that ensure indifference towards irrelevant information in each setting.
The societal functions of the right to privacy, therefore, lie in its selection achievement. 8 By limiting the range of relevant information to the task at hand, the right to privacy reduces the complexity of communication in each social system, and simultaneously increases its variety and complexity at the societal level. A principle for complexity reduction, it provides structures for building further complexity.
Privacy protections create a web of ‘structural couplings’ (Luhmann, 1992), i.e. mechanisms for mutual conditioning, among social systems. 9 While no system can operate beyond its own boundaries, i.e. control operations of other systems, structural couplings allow self-referential systems to take certain features of one another into account and rely on them for their own operations. Hence, statutes are drafted, litigation processed, news and entertainment produced, financial transactions completed, health services provided, scientific research on human subjects conducted and disseminated, etc., all taking into account different selective potentials of information in other systems, i.e. risk of lawsuits for privacy violations. The result is a degree of loose compatibility among self-referential systems, without presupposing a common reference scheme, or an overarching moral order among them.
Likewise, privacy protections allow individuals to count on the private/public distinction specific to each social system and employ that in their communications. Thus, one can expect inquiry about one’s medical history as part of hospital admissions, but off limits in job interviews or college applications; mandatory drug-testing as part of professional sports competition but off limits in buying property or applying for passports.
As our ability to forget the past and filter alternative presents diminishes, privacy protections offer the temporary amnesia necessary for selection of relevant communications. They form part of the common background of schematized contingency which provides entrance and exit rules for otherwise unlikely interaction-partners to navigate this increasingly intricate web of communications. At the same time, they allow self-referential social systems to condition their operations to the noise of other towers of Babel. While there may be functional equivalents to privacy, modern society cannot do away with privacy’s multiple functions and keep the totalitarian tendencies of its societal systems at bay. In the midst of contemporary complexities, privacy may be a canary in the mine.
Sociology of Privacy and Privacy Jurisprudence
The above discussion grounded the polysemic character of privacy in the functional differentiation of social communication systems and paradoxes of their self-reference. It is now time to see if this factor bears on legal determinations of the meaning of privacy in concrete situations. Since such decisions are made by the courts, the response requires analysis of privacy jurisprudence.
The following case-law examples from the US Supreme Court and the ECtHR involve balancing privacy claims against three other legally recognized interests: promotion of public morality; crime prevention and public safety; and freedom of expression. 10 Of primary concern is not the validity or legitimacy of court decisions, but the construction of legal grounds for their justification. The discussion does not address how courts should balance privacy against other values and interests. Rather, it examines how such balancing acts are grounded in the law. Notwithstanding judges’ moral and political commitments, the analysis remains at the level of legal argumentation. It asks if and how legal justifications for selective validation of privacy claims are related to functional differentiation.
Privacy vs. Protection of Public Morality
In Bowers (1986), a divided US Supreme Court upheld criminal sodomy laws by accepting ‘majority sentiments’ concerning the immorality of homosexuality as a ‘rational basis’ for legislation. Extending constitutional protection to homosexuality, ‘with no recognizable roots in the language or the design of the Constitution’, the Court held, would require a political rather than judicial decision.
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Lawrence (2003) overruled Bowers. Relying on its own abortion jurisprudence, decriminalization of homosexual conduct by a majority of American states and many countries including the UK, and the ECtHR rulings, the Court held:
The fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.
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The liberty protected in the Constitution was declared broad enough to allow homosexual persons to decide expressions of sexuality in their intimate relations.
Notwithstanding conflicting views in society about the legitimacy and limits of moral politics, such contradictory rulings are made possible by a conflict within the law concerning the functional relevance of morality to legislation. On the one hand, in liberal democracies some moral beliefs of minorities are entitled to legal protection. Therefore, the law cannot simply announce a majority morality as the morals of the nation; on the other hand, promotion of public morality remains a legally recognized state function and many morally grounded laws, e.g. prohibition of bigamy, bestiality, or adult incest, are still on the books.
To the extent that purely moral communications are denied functional relevance to the law, individuals are left to make decisions about their own lives ‘without public scrutiny and in defiance of the contrary opinion of the sovereign or other third parties’. 13 This involves recognizing the individual as ‘belong[ing] to himself and not others or to society as a whole’. 14 A result is further differentiation of both social systems and individuals’ multiple personas and new challenges for their interpenetration. Conversely, making moral values directly relevant to determination of legal norms fuels moral conflicts without providing legal grounds for their adjudication.
Privacy vs. Crime Prevention and Promotion of Public Safety
In Gillan and Quinton (2010) the ECtHR decided for privacy against stop-and-search powers of the police under sections 44 and 45 of the UK Terrorism Act (2000):
The use of the coercive powers conferred by the legislation to require an individual to submit to a detailed search of his person, his clothing and his personal belongings amounts to a clear interference with the right to respect for private life.
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The question was whether such interference with private life without reasonable suspicion of wrongdoing was legal. Based on statistics of searches conducted under the Act, the Court observed a clear risk of prejudicial treatment of racial minorities. In the most recent report, from 2006/7 to 2007/8, while the overall number of searches increased by 215 per cent, the rise for Blacks was 322 per cent, for Asians 277 per cent, and for Whites 185 per cent. ‘[N]one of the many thousands of searches had ever related to a terrorism offence.’ The Court concluded that, ‘the breadth of the discretion conferred on the individual police officer’, by the Act, was ‘neither sufficiently circumscribed nor subject to adequate legal safeguards against abuse’. 16
In Uzun (2010), however, the Court allowed covert surveillance through the use of GPS in information gathering in criminal investigation of several bomb attacks. Although such measures ‘amounted to an interference with … private life’, they were deemed ‘in accord with the law … [which] provided sufficient guarantees against abuse’. Thus, the interference was found in the ‘interests of national security and public safety, the prevention of crime and the protection of the rights of the victims’. 17
At issue here is the functional relevance of political power to legal determination of the scope of Convention rights. Any suspension or limitation of fundamental rights guaranteed by the Convention must accord with legal standards rather than political expediency.
In matters affecting fundamental rights it would be contrary to the rule of law, one of the basic principles of a democratic society enshrined in the Convention, for a legal discretion granted to the executive to be expressed in terms of an unfettered power.
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Privacy vs. Freedom of Expression
In Peck (2003), the ECtHR decided for privacy against freedom of expression when CCTV footage of Peck’s attempted suicide on a public street was broadcast without adequate masking of his identity. The Court reasoned that, though the applicant ‘was in a public street … he was not there for the purposes of participating in any public event and he was not a public figure’. Public broadcast of his image ‘far exceeded any exposure to a passer-by or to security observation … [he] could possibly have foreseen’. 19 Thus, without his consent, the media should not have disclosed his identity pursuant to their legitimate purpose of reporting alleged efficiency of CCTV in crime prevention.
Privacy also won the day in Von Hannover (2004) when unauthorized photos of a member of Monaco’s royal family were publicized. Since the photographed events had no relevance to her ‘public function’, the Court held:
The public does not have a legitimate interest in knowing where the applicant is and how she behaves generally in her private life even if she appears in places that cannot always be described as secluded and despite the fact that she is well known to the public.
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Freedom of expression came out ahead, however, in White (2006) when a report, ‘balanced’ and in ‘good faith’, about the illegal activities of Olof Palme’s alleged assassin was published. This time, since the applicant was already well known and the matter was of ‘serious public interest and concern’, the Court saw ‘little scope for restricting the communication of information’. 21
In each of the latter three cases ‘the decisive factor in balancing privacy against freedom of expression’, was contribution of publicity to a ‘debate of general interest’, in a democratic society. Here the Court made an important distinction between two functions of the media: a) ‘watchdog’ of democratic society; and b) source of ‘entertainment’ or ‘curiosity’ satisfaction for ‘a particular readership’. 22 While the first function could trump privacy, the Court held, privacy outweighed the second.
Privacy jurisprudence is still in its infancy. Yet, a gravitational axis may be emerging in rendering justice, i.e. treating like cases alike, at least at some highest courts of appeal. Functional relevance seems a universal, albeit implicit, emergent standard in judicial account-giving across diverse privacy conflicts. Of course, neither better privacy protections nor sound and consistent adjudication can permanently fix the boundaries of social systems. Structural drifts of social communications constantly alter system boundaries and generate new tensions between them; new privacy conflicts emerge; the line between legal and illegal is muddled; and, once again, the courts are called upon to determine what is public and private in the eye of the law.
That is how, over the last century, new privacy rights have emerged alongside new ‘intrusions’ into zones previously considered private. Until the 1970s, e.g. domestic violence against women was shielded by the law in the name of privacy of the family and harmony of domestic life (Siegel, 1996). Today, however, in many western countries privacy of intimate relations is recognized alongside the actionability of marital rape, domestic violence, and child abuse. While privacy protections in certain decisions concerning one’s body and mind have expanded beyond white, heterosexual, sound-minded males of the upper classes, elites seem to have lost to the media some of their earlier control over communication of personal information. Legal distinctions between multiple functions of the media as well as differentiation of functionally relevant and irrelevant aspects of public figures’ lives may restore some of that control.
Finally, like other laws, legal protections of privacy can structure normative expectations; they cannot determine behaviour. The degree to which such expectations fail is indicated by proliferation of privacy conflicts and the sporadic character of legal responses to them. Yet, confidence in the possibility of legal redress absorbs much of the risk of factual privacy violations. As long as generalized normative expectations of privacy persist, blatant privacy violations or inconsistencies in adjudication can be endured. 23 That may explain the apparently widespread blasé attitude toward unforeseeable consequences of cyberspace transactions and public surveillance, alongside heightened sensitivity to protection of privacy.
Conclusion
Privacy concerns are as empirically ubiquitous as they have been theoretically elusive. Devoid of a general sociological theory of society, previous attempts at theorizing privacy could not account, in terms of transformation of societal structures, for the polysemic character of privacy and its contingent legal determination. Grounding both in functional differentiation of social communications, this article showed the irreducibly societal functions of privacy as a structural coupling between self-referential social systems. It demonstrated a common denominator among privacy conflicts and an emergent standard for their legal resolution.
While privacy debates often rely on the individual/society distinction, this article examined privacy at the border of differentiated social systems. Privacy conflicts were observed as disputes over the system-reference of events and functional relevance of communication. Functional relevance appeared to perform the alchemy of turning ‘private’ events into ‘public’ ones, or ‘reasonable limitations’ of privacy into ‘unwarranted violations’, and vice versa.
This approach can bring some coherence to the field across academic disciplines and levels of analysis. Emergence of privacy conflicts in everyday life; connection of such episodes to operations of the legal system (through formal complaints, police reports, legal briefs, etc.); legal resolution of such conflicts; and finally the role of such resolutions in shaping future privacy claims, all can be examined with a single focus: functional relevance of communication. If fruitful, such investigations can help bridge the gap between legal and sociological investigations of privacy. They may inspire comparative examination of privacy policy and jurisprudence in terms of stages, sequences, and paradoxes of functional differentiation. In turn, they can put contributions of sociology in general, and social systems theory in particular, at the disposal of reflexive theories of law in conceptual and doctrinal innovations concerning privacy.
Footnotes
Acknowledgements
With gratitude to Richard Nobles, John Paterson, James Porter, Steven Rytina, David Schiff, Axel Van den Berg, and the editors and anonymous reviewers of Sociology for helpful comments and criticisms on earlier drafts of this article.