Privacy Right, the Family and Entertainment

Alejandro Laje


Argentine and American courts have a similar understanding of privacy and Privacy Right. However, the theoretical frameworks and actual rulings in both countries differ in their perspectives and foundations. We provide here a comparative mapping of key conceptual elements of Privacy Right as addressed by the courts of both legal traditions, focusing on family issues. What makes the legal protection of privacy inappropriate, as argued here, is the conceptual framework of Privacy Right. When exploring the causes of this inadequacy, it is found that a largely unconscious process --whereby privacy is frequently associated with other concepts, feelings and actions, such as integrity, autonomy, identity and data protection--, turns Privacy Right into a conflicted right. Notwithstanding, privacy is considered to be the backbone of Western societies and, in many ways, the actual democratic standing of a nation depends upon the way it is protected. The conflicting status of privacy is particularly clear in the field of Family Law, where a strict conceptualization of privacy is required in order to assure compatibility between the proper functions of the family members and State regulations.While civil tradition seeks the norms that will best address the protection of privacy, common-law tradition struggles to find cases that will provide the background for its adequate protection. Based on civil and constitutional law analysis, we are contending here that privacy can be clearly and properly addressed by establishing a legal standard that will consider illegal to use a person’s privacy as entertainment without consent. It is also argued here that a clear conceptualization of Privacy Right will allow for the establishment of legitimate limits in State regulation of the family. The worth of considering privacy as opposed to an object of curiosity, contempt and entertainment is that a clear conceptualization can be drawn allowing an unconditioned protection of privacy, stripped of all other philosophical, political and even social considerations.

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