When does wrongdoing disentitle an individual to his right to privacy? Exactly what amounts to that type of wrongdoing which simply can never be protected by a right to privacy in the first place? Although it is largely accepted that unlawful behaviour should not be conceived of as ‘private’ and should not be protected by a right to privacy, it remains unclear how we define that nature of wrongdoing which sits outside the scope of the wrongdoer’s claim to privacy. This issue is at the heart of how we conceive of and justify a right to privacy, particularly one that is protected by law. Jelena proposes a deontological framework, directly connected with the core value of the right to privacy itself, for determining exactly the type of wrongdoing that disentitles an individual to protection otherwise offered by the right to privacy. ‘Public’ wrongdoing, the essence of which is the betrayal of another or of the community itself, is inconsistent with why we value privacy and the reasons why we protect it, including in law. Wherever a type of wrongdoing is of the nature of ‘public’ wrongdoing, therefore, the wrongdoer in question has no claim to privacy, in respect of that wrongdoing.

This framework seeks to apply and extend recognised philosophical underpinnings of the right to privacy, including individual dignity, autonomy, liberty, as well as social cohesion and a vision of the common good. The anti-consequentialist nature and application of this framework rests on the understanding that it is the normative construction of privacy itself, the central reasons why it is important, and not conceptions of the ‘public interest’ or the positive or negative consequences of protecting privacy, that must, as a matter of analytical clarity and moral legitimacy, determine the boundaries of the right to privacy.

Dr Jelena Gligorijevic holds a PhD from the University of Cambridge (Trinity College). She specialises in media law, and constitutional law and theory, with particular interest and expertise in privacy law.