Liberty vs. Dignity

As I work on my final project I’m doing some expanding of the research I did on the Court of Justice of the European Union’s Right to be Forgotten decision. When I read research for my mini lit review many scholars made reference to the basic differences between the European concept of privacy and the US concept of privacy and I realized as I set out to present the case for my project that I really didn’t understand what those differences were. Here’s what I’ve learned so far.

Some scholars see modern European privacy laws as a reaction to the extreme violation of personal rights practiced by the Nazis on specific groups during World War II (Shaw, 2013). Others see older roots in aristocratic Europe when members of the privileged classes were able to defend their cultivated public images from intrusions by the press (Whitman, 2004). In both cases one’s persona is something one is entitled to protect and shield from embarrassment and humiliation and the biggest threat (these days) to that privacy is the media. This is privacy conceived as dignity (Whitman, 2004).

In the US privacy is rooted in the idea that you are protected from the government coming into your home and throwing its weight around. The term privacy invasion illustrates this threat quite clearly. We do not have protection against public humiliation and embarrassment precisely because we see freedom of the press as an important way in which we preserve our liberty from an over-zealous state.  This is privacy conceived as liberty (Whitman, 2004).

These two very different ideas about freedom cause frequent misunderstandings between two free cultures. Europeans are amazed that Americans allow the press to delve so far into the private sphere. Whitman (2004) uses the publicity surrounding the Monica Lewinsky and Bill Clinton affair as an example when Europeans think we have far overstepped the protection of peoples’ dignity. Whitman (2004) also reports that Europeans are amazed at American complacency in the face of the practice of credit reporting. They see making the financial information of individuals who have done nothing wrong available for inspection by merchants and banks as a flagrant violation of the privacy of one’s personal information.  

Americans are in turn astonished by European disregard for what they consider to be privacy in the practice of public nudity (Whitman, 2004). We, in fact, call those exposed body parts privates. The allowance of intrusions by government actors is where European concepts of privacy really depart from American ideas, though. In various European countries the government is allowed to regulate what parents can name their child (Dewey, 2013), wire-tap private conversations at far higher rates (Whitman, 2004), and require all citizens to formally register with the police when they move to a new place (Kluth, 2010).

Kluth, A. (2010). Privacy law: US “liberty” vs European “dignity”. Retrieved 8/22/2015 from: http://andreaskluth.org/2010/03/05/privacy-law-us-liberty-vs-european-dignity/

Shaw, T. (2013). The Privacy Advisor. Privacy Law and History: WWII – Forward. Retrieved 8/17/2015 from: https://iapp.org/news/a/2013-03-01-privacy-law-and-history-wwii-forward/.

Whitman, J. Q. (2004). Yale Law Journal.  The Two Western Cultures of Privacy: Dignity Versus Liberty. Retrieved 8/17/2015 from: http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1647&context=fss_papers

Dewey, C. (2013). Washington Post. 12 countries where the government regulates what you can name your child. Retrieved 8/17/2015 from: https://www.washingtonpost.com/news/worldviews/wp/2013/05/03/12-countries-where-the-government-regulates-what-you-can-name-your-child/