Beginning with Warren and Brandeis’ articulation of the right to privacy in their 1890 Harvard Law Review this paper will examine the evolution of the right to privacy and the absence of a unifying jurisprudential basis for the right at modern law. In doing so, the paper will compare the emergence of the right to privacy in the United States (as an example of a jurisdiction with poor privacy protections and a strong engagement with the underlying philosophy of the right to privacy) and the European Union which evidences an obverse stance. In considering the EU the paper will focus on France as an example of a jurisdiction with staunch pro-privacy values, and Ireland as an example of a jurisdiction with strong privacy protections but underdeveloped jurisprudence on the right to privacy. In light of this examination the paper will seek to locate the jurisprudential roots of a privacy right and examine whether a re-articulation of Warren and Brandeis’ formulation of the right to privacy might offer firmer ground in constructing privacy architectures in future.
Costello, Roisin Aine, Warren and Brandeis and the Right to Privacy’s Hollow Core (October 26, 2015). Kings Inns Law Review, 2015.