Abstract
This paper presents an argument for the value of privacy that is based on a purely negative concept of freedom only. I show that privacy invasions may decrease a person’s negative freedom as well as a person’s knowledge about the negative freedom she possesses. I argue that not only invasions that lead to actual interference, but also invasions that lead to potential interference (many cases of identity theft) constitute actual harm to the invadee’s liberty interests, and I critically examine the courts’ reliance on a principle of ‘no harm, no foul’ in recent data breach cases. Using a number of insights from the psychology of human belief, I also show that the liberal claim for protection of privacy is strengthened by the observation that often the privacy invader cannot be held responsible for the influence on the invadee’s negative freedom.
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Acknowledgments
Warmest thanks are due to Constanze Binder, Luc Bovens, Bert van den Brink, Matthew Braham, Amitai Etzioni, Hans Harbers, Martin van Hees, Frank Hindriks, Jan-Willem van der Rijt, Dan Solove, Chris Zurn, to audiences in Amsterdam and Utrecht, and to an anonymous referee of this Journal, for valuable comments on an earlier version of this paper.
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Open Access This is an open access article distributed under the terms of the Creative Commons Attribution Noncommercial License (https://creativecommons.org/licenses/by-nc/2.0), which permits any noncommercial use, distribution, and reproduction in any medium, provided the original author(s) and source are credited.
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de Bruin, B. The Liberal Value of Privacy. Law and Philos 29, 505–534 (2010). https://doi.org/10.1007/s10982-010-9067-9
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DOI: https://doi.org/10.1007/s10982-010-9067-9