“The idea of immunity, which is needed for protecting our life, if carried past a certain threshold, winds up negating life. That is, immunity encages life such that not only is our freedom but also the very meaning of our individual and collective existence lost: that flow of meaning, that encounter with existence outside of itself that I define with the term communitas, which refers to the constitutively open character of existence.” (Esposito: Terms of the Political – Community, Immunity, Biopolitics, 61).
Privacy and personal data protection have become hot topics in European political debate. This is discernible also in the case law of the European Court of Human Rights and the European Court of Justice. Occasionally it seems that the EU Court attempts even stronger protection of certain aspects of privacy, having for instance recognised the ‘right to be forgotten’ in the famous Google case last year.
What are the socio-legal currents that have produced the need to elevate privacy to the status of legal right? Why has privacy become so important? The explanation may be found in the development of an ever more individualised society where people are cast as independent actors instead of group members – or citizens.
It is worth considering whether increasing demands for privacy, when understood as the protection of subjective and individual persons, come with a price-tag seldom acknowledged. Drawing on the concept of immunity as theorised by the Italian philosopher Roberto Esposito, we can interpret enhanced privacy protection as a symptom of individualised society including a logic that causes ever more diminishing sense of community.
Privacy and Autonomous Personhood
An interesting feature of the public discussion surrounding the right to privacy is that as so often seems to be the case, legal experts are unable to agree on a definition of ‘privacy’. In legal literature, it is intimately connected to freedom. Sometimes it is understood to signify the opposite of public, but not always. Often it is connected with self-determination.
Indeed, there seems to be a constant battle being fought for the correct meaning and application of the concept. Questions arise concerning representation in digital space. Should a Facebook message be compared to a private letter or rather to a publicly expressed opinion? Where are the limits of state surveillance? Should terrorists have the right to keep data hidden? The line between private and public is continuously being re-drawn. We are faced with one of the classical problems for the philosophy of law: What is the scope of everyone’s right to live as they please?
In the US legal context the development of a right to privacy has its roots in a seminal article by Warren and Brandeis published in 1890. They are among the first to understand privacy as an independent and irreducible legal right which essentially amounts to the immunity of the person. Privacy is defined by them as a general ‘right to be left alone’. This definition has been very influential not only in America but in Europe as well.
“The common law secures to each individual the right of determining, ordinarily, to what extent his thoughts, sentiments, and emotions shall be communicated to others. Under our system of government, he can never be compelled to express them (except when upon the witness-stand); and even if he has chosen to give them expression, he generally retains the power to fix the limits of the publicity which shall be given them.”
The huge post-Snowden debate includes cries for more privacy but also different privacy, for instance a right to be left alone by a surveillance apparatus. Philosophers have had their say. We find for instance an endemic cry for privacy by Professor Michael Lynch in The New York Times in 2013. Breaches of privacy like the government spying programmes are, according to him, a threat to the self. According to Lynch, the connection between loss of privacy and dehumanisation is a “well-known and ancient fact” because privacy is intimately connected to what it means to be an autonomous person. If someone else could have access to my innermost thoughts, dreams and fears, they could start controlling them. Thus what is at stake is not only my autonomy but my freedom too. There would be nothing subjective about me anymore. I would have become dehumanised. Lynch concludes with an argument that is by no means unique:
“However we resolve these issues, we would do well to keep the connections between self, personhood and privacy in mind as we chew over the recent revelations about governmental access to Big Data. The underlying issue is not simply a matter of balancing convenience and liberty. To the extent we risk the loss of privacy we risk, in a very real sense, the loss of our very status as subjective, autonomous persons.”
I agree with Lynch that we would do well to keep the connections between self, subjectivity and privacy in mind. But the fear for a loss of self requires further thought. There is something uncanny about a self that has been lost, not to mention about de-humanisation. Are we afraid of losing something we do not have in the first place?
Occasionally we just ask too much of the law. The right to privacy has not been, nor can it ever be a guarantee for the protection of our innermost selves as autonomous beings. A completely autonomous person we have never been. This has been argued quite convincingly by many a philosopher from Fichte to Freud, Foucault and Derrida.
Immunisation as Protection and Threat
Esposito notes that in law, immunity has traditionally been linked to the diplomatic immunity of foreign nationals. Even when referring to a collective, immunity always belongs to someone. It is also anti-social or anti-communal, an exceptional quality that defines whoever is immune as belonging in some way outside the community. This is the traditional way immunity has been used as a legal concept. Diplomatic immunity creates existence outside the community and creates an exception to its rules. It grants non-interference and safety from the powers of the sovereign.
However, the idea of immunity also receives significance from its biological origins in vaccination. The immunitary mechanism is created by introducing a form of virus (or antibodies) in order for the body to defend itself. The immune mechanism functions through the use of what it is meant to protect us from. The poison is the cure reminding us of Derrida’s pharmakon.
In biomedical language immunity means an exemption from, or protection against an infectious disease. In law it refers to a position outside and beyond common law. What unites both of these meanings is immunisation as a situation that saves someone from risk. For Esposito, community and immunity are in fundamental opposition. Immunity can function as a hindrance for community.
Community can also be interpreted as affirmative, while immunity is negative. Where community is characterised by a responsibility of care for one another, immunity creates an exemption from this condition. “Immune is he or she who breaks the circuit of social circulation by placing himself or herself outside it.”
Esposito argues that the immunitary dispositif has spread from biomedics and law to all sectors and discourses of our lives. This has happened to the extent that immunity has become a major feature, both real and symbolic, of contemporary existence. Today we are more than ever concerned with the preservation of life and we understand it according to the logic of immunology.
The thesis is that when the idea of immunity is carried past a certain threshold, it becomes a risk itself. Instead of protecting life, it starts negating it. The meaning of our individual and collective existence gets lost. Community is conditioned on openness, whereas immunity is an activity of closing off and shutting out.
Privacy and Community
How does European jurisprudence of the right to privacy reflect this immunitary logic? The question does not get a simple answer but it can be argued that the legal definition of privacy is not an unambiguously individualising concept. Article 8 of the European Convention on Human Rights grants everyone the right to respect for their private life. The protection encompasses many things including family life, home and correspondence. Values such as autonomy, identity and integrity have been referred to repeatedly in the case law from the European Court of Human Rights. The objective is to prohibit unwanted intrusions into people’s private spaces, be they physical or mental, especially by public authorities.
Hence, the right to protection of private life functions as a security break that sets limits on public authorities and power-yielding bodies. It is designed to enable people to live the life they choose, shape their identity freely and become who they are. But there are limits to this freedom. The law is essentially an instrument of social coordination and organisation, which both creates certain kinds of legal subjects but also prevents other alternative subjectivities.
As Jill Marshall has observed, human rights law aims at safeguarding human dignity and the freedom of everyone but it does not expect people to develop their personality or exercise their freedom alone but in a community with others. The values of autonomy, identity and self-determination in their legal form include a communal aspect. It is not the individual individual that the law protects, but something else. In law, individuality becomes shared, a feature that we all have in common.
Legal judgments require a careful consideration of the facts of the case and respect for the individual parties and their circumstances, but every judgment includes also a test of social adequacy. The European Court of Human Rights analyses the parties’ situation through the lens of public morals or reasonableness within the community, or sometimes states’ public policy goals. In this sense individuality is necessarily generalised in legal practice.
Legal definitions of privacy cannot be private in the sense of subjective. No matter how much we fear a loss of self with breaches of privacy, law does not and cannot protect our individual, subjective personhood. The law is ‘our common law’, as Warren and Brandeis put it, and it connects us with community. Even when drawing limits on that community’s intrusions into our lives, it operates with a communal logic. Privacy works as a paradoxical instrument by which the law enhances individualisation, but can do so only in general terms.
Increasing demands for privacy can be seen as a strategy deployed on and by the community to defend itself but taken too far they can start producing harmful effects. Immunisation as individualisation can hinder the development of community and diminish our sense of responsibility of one another. Over-emphasising privacy risks constructing us as independent individual selves residing in bubbles closed off from one another and hostile to whatever constrains our identity.
Dr Susanna Lindroos-Hovinheimo works as Lecturer in Jurisprudence at the University of Helsinki. She has previously taught Jurisprudence and Legal Theory at Queen Mary University of London. She has published extensively on legal theory, for instance Justice and the Ethics of Legal Interpretation, Routledge 2012. Her current research project studies the philosophy of European legal personhood.
 See Bauman, Zygmunt: Liquid Modernity. Polity Press 2000, 30–41.
 Warren, Samuel D. & Brandeis, Louis D.: ‘The Right to Privacy.’ Harvard Law Review, Vol. 4, No. 5 (Dec. 15, 1890), 198–119.
 Esposito, Roberto: Immunitas – The Protection and Negation of Life. Polity Press 2011, 6.
 Esposito, Roberto: Terms of the Political – Community, Immunity, Biopolitics. Fordham University Press 2013, 58.
 Esposito: Terms of the Political, 58.
 Esposito: Terms of the Political, 59.
 Esposito: Terms of the Political, 59.
 See Marshall, Jill: Personal Freedom through Human Rights Law? Martinus Nijhoff 2009, 7.
 See Marshall: Personal Freedom through Human Rights Law? 13–14.