Privacy law: US “liberty” vs European “dignity”
These naked Germans are enjoying themselves in the middle of Berlin. I’ve been just as gleefully naked in Munich, Berlin and various other European places. To Germans and other continental Europeans this is a) fun and b) part of freedom. The word for public nudity, in fact, is Freikörperkultur (‘free body culture’), often abbreviated to FKK.
To Americans, of course, this tends to be awkward if not shocking:
“Don’t these Europeans have a sense of privacy?”
Then there is, for example, Monica Lewinsky and that whole thing with the president of the United States. A special prosecutor — nay, all of America — parsed every word of the country’s head of state, demanding to know exactly what these two had been up to in which closet — from “distinguishing characteristics” to stains on dresses and all the rest.
To Americans this was part of freedom — the free press and the right to hold government accountable.
To continental Europeans, by contrast, this was amusing at first, then awkward, then distasteful and finally undignified:
“Don’t these Americans have a sense of privacy?”
The Two Western Cultures of Privacy
So there you have it: two western cultures of privacy, each (being “Western”) deceptively familiar and yet incomprehensible to the other. Here are some questions, which fit perfectly into two of my threads here on The Hannibal Blog: the thread on America and the one on freedom.
- What is privacy? What is to be kept private from whom, when, where and why?
- And how does that interrelate with freedom and dignity?
James Q. Whitman, a professor of comparative law at Yale, has written a profound article about exactly this. It is called “The Two Western Cultures of Privacy: Dignity Versus Liberty.” I recommend it. Here is the PDF.
For the rest of this post, I’ll try to describe the Atlantic culture clash and then the possible historical causes as Whitman sees them. In the next post, I’ll talk about two cases that are great examples of the two cultures. But first — and before you jump into the comments with your counterexamples (there are many) — note that Whitman himself admits that this is a matter of nuance:
The issue is not whether there is an absolute difference. Comparative law is the study of relative differences.
I. The clash
The conventional wisdom — with which I mostly but not totally agree — is that continental Europe has much stronger privacy laws than America does. In a long list of areas, Europe circumscribes what information can be circulated about people, whereas America hardly does so at all:
- consumer data
- credit reporting
- workplace privacy
- “discovery” in civil litigation (ie, rummaging around in the records of your opponents in a lawsuit)
- the dissemination of nude images on the Internet
- and so on.
As Whitman says,
I have seen Europeans grow visibly angry, for example, when they learn about routine American practices like credit reporting. How, they ask, can merchants be permitted access to the entire credit history of customers who have never defaulted on their debts? Is it not obvious that this is a violation of privacy and personhood, which must be prohibited by law?
By contrast, privacy is explicitly enshrined in European law (both national and EU law). For example, Article 8 of the European Convention on Human Rights protects “the right to respect for private and family life,” and the European Union’s Charter of Fundamental Rights features articles on “Respect for Private and Family Life” and “Protection of Personal Data.”
But Americans can counter with a different list to prove that it is actually Europe which allows the compromising of privacy:
- those “private parts”! (= nudity)
- baby names: Several EU governments restrict what parents can name their children!
- Official ID cards/registration: In Germany, for instance, you have to register with the local police when you move to a new place.
- Court-room use of evidence that Americans would consider illegally seized
- phone tapping, which apparently happens much more often in Europe than in the US
So the question is: What’s going on here? How did these differences come about? As Whitman puts it,
Why is it that French people won’t talk about their salaries, but will take off their bikini tops? Why is it that Americans comply with court discovery orders that open essentially all of their documents for inspection, but refuse to carry identity cards? Why is it that Europeans tolerate state meddling in their choice of baby names? Why is it that Americans submit to extensive credit reporting without rebelling?
II. Causes: Liberty versus Dignity
Let’s first try to analyze the two cultures of privacy in terms of what each thinks must be kept private from whom and for what purpose.
a) Europe (= dignity)
European privacy laws aim to protect a person’s dignity. In practice, this means protecting the individual’s control over the use of his
- reputation, or
So dignity is implicitly defined as control over one’s public image. You have a right not to be humiliated or embarrassed in public.
And who is the enemy/threat? Who would typically do the humiliating? Well, the press, or its new-media descendants today. Let’s just call them all the paparazzi.
b) America (= liberty)
American privacy laws, by contrast, aim to protect a person’s liberty. The word liberty is here defined in the traditional American (and quite narrow) sense of freedom from government tyranny. (Freedom can have many, many meanings: see here, here and here. ;))
Who is the enemy/threat in this culture?
Well, certainly not the press, whose freedom of speech is one of the things most in need of protection, even when that means that individuals (Lewinsky, Clinton) are being humiliated in public.
Instead, the enemy/threat is the state.
The locus of maximum protection, moreover, is not the public sphere (as in Europe) but the private sanctum of an individual’s home. The government must, to the greatest extent possible, be kept out of it. The police must (in most cases) not break in and search it. (This is true in Europe, too, of course, but the relative emphasis is stronger in America.)
In this culture, the right to privacy decreases as an individual moves further (physically or metaphorically) from his home. Once you’re in the workplace, in the subway, on the street, at the beach or otherwise in public, you’ve “asked for it.” Clinton, Lewinsky: you’re fair game!
Whitman puts the mutual incomprehension this way:
When Americans seem to continental Europeans to violate norms of privacy, it is because they seem to display an embarrassing lack of concern for public dignity—whether the issue is the public indignity inflicted upon Monica Lewinsky by the media, or the self-inflicted indignity of an American who boasts about his salary.
Conversely, when continental Europeans seem to Americans to violate norms of privacy, it is because they seem to show a supine lack of resistance to invasions of the realm of private sovereignty whose main citadel is the home—whether the issue is wiretapping or baby names.
Let’s take another look at the example of public nudity:
Europeans assume that you have a right to both nudity and dignity in public. So, for instance, the paparazzi (or neighbors) do not have a right to take a picture of you and then put it on the internet, because you must remain in control of your public image. It’s not even OK for others to stare at you. (I’ve gotten in trouble over that.)
This concept of private public nudity is entirely alien to American law. In fact, it sounds oxymoronic (perhaps even just moronic) to Americans. They assume that once you have left the sanctum of your home and entered a public space, and indeed metaphorically shed the “walls” of your mobile “home” in the form of clothes, you can no longer expect privacy. You have, as it were, asked for it.
Just one illustration: The US Supreme Court’s 1995 decision in Vernonia School District v. Acton.
The question before the court was whether high school athletes could be subjected to mandatory drug testing. Yes, they could, said the court, because — and this is the logic that confounds Europeans to the point of making them guffaw — athletes regularly shower together (naked, we assume), and by voluntarily exposing themselves, these athletes can therefore expect less privacy, which means it is OK to test their piss.
(This might also shed light on the debate we had when I proposed “shaming” people who text and drive by snapping pictures of them and publishing them on the web. It seems that we are “free” to implement my idea in America, but not in Europe, where this might compromise the dignity of the drivers.)
So where do these fascinating differences come from? The conventional answer is that Europe after the Fascist horror of the 1930s and 40s, and in particular Germany after the Nazis, corrected for the sheer indignity of those crimes against humanity by elevating human dignity to the highest value.
I happen to believe this is largely correct (Whitman does not, and in my opinion this part of his thesis is the weakest). For example, Germany’s constitution, written in 1949, explicitly starts with the phrase
Die Würde des Menschen ist unantastbar (The dignity of each human being is untouchable)
I pointed to this in my post on the different views of healthcare in America and Europe, and alluded to it in my post on the different attitudes toward prisoners. (European law protects the rights of prison inmates “to a degree almost unimaginable for Americans,” as Whitman puts it. The European in me is shocked by the prison conditions in America.)
But Whitman traces the origins of the differences between America and Europe several centuries further back, and this is the most fascinating part of his argument. So here, in brief, are the histories of privacy law in Europe (France and Germany) and America:
In Europe, the concept of dignity “descends” from that of honor and the so-called law of “insult” that accumulated over the centuries around it.
In a nutshell, what we are talking about here are a bunch of toffs dueling, as in the picture above. It was aristocrats and other high-status individuals who protected their honor (ie, their “public image”), both from the prying eyes of the press and from insult by others. Gradually, society lost its taste for cleaning up the gore after duels and encouraged the toffs to meet in court instead.
What Europe’s various revolutions, starting with the French one in 1789, did over time was to elevate more and more low-class individuals to the same “royal treatment.” Eventually, after World War II, all Europeans became entitled to it, just as all adult French and Germans, of whatever status, could now expect to be addressed by other adults as vous or Sie.
France and Germany, took subtly different paths to get to the same place: In France, the main body of law was written during the 19th century in response to famous artists and writers doing sexy things of a questionable nature. (I know this comes as a shock.) I’ll highlight one such case, involving the author of The Three Musketeers, in the next post. In most cases, whenever the dignity of a prominent individual was threatened after sexy photos of him or her were published, even when that individual had expressly sold the right to those photos (!), the courts opted to preserve dignity.
In Germany, also during the 19th century, the individuals whose cases drove the law forward were not so much lascivious artists but brooding philosophers. (Again, I know this comes as a shock.)
Influenced by Hegel, Kant and their ilk, the German lawyers wanted to prove the pre-eminence of free will. They went all the way back to ancient Rome and the law of my hero Scipio to re-interpret the Roman law of “insult” (injuria). From this, they constructed the concept of Persönlichkeit (personality or personhood), which is often used in the same contexts that Americans use liberty but with a twist.
In a nustshell: To be free meant, as Whitman puts it,
to exercise free will, and the defining characteristic of creatures with free will was that they were unpredictably individual, creatures whom no science of mechanics or biology could ever capture in their full richness… The purpose of “freedom” was to allow each individual fully to realize his potential as an individual: to give full expression to his peculiar capacities and powers.
(Sounds a lot like Abe Maslow’s self-actualization, don’t you think?)
In any case, both the French and the German legal traditions put much less emphasis on the sordid American obsessions with consumer sovereignty and commercial freedom (credit reporting, for example) and much more emphasis on creativity and the presentation of self, of Persönlichkeit in all its eccentric splendor.
America, by contrast, embarked on the journey of privacy law with the Bill of Rights. And it focused on limiting state power. The Fourth Amendment specifically establishes the right against unlawful searches and seizures as the main expression of privacy.
Searching and seizing is usually done in one’s home, so right from the start, the concept of privacy resided there.
Of course, there have been American lawyers over the years who have tried to make American law more “European”. The main attempt was “The Right to Privacy” by Samuel Warren and Louis Brandeis in 1890. But these attempts never went far.
Property rights and/or freedom of speech almost always prevail in American courts over appeals to privacy and dignity. Whitman cites, for example, the Supreme Court’s decision in Cox Broadcasting Corp. v. Cohn and Florida Star v. B.J.F. In these cases, the media published the names of rape victims. In both cases the Supreme Court found that the First Amendment protected media outlets against suit. European courts would have been concerned with protecting the rape victims. Ironically, because those victims might once have been aristocratic toffs.