Privacy as human flourishing: Could a shift towards virtue ethics strengthen privacy protection in the age of Big Data?

• Author: Bart van der Sloot
• Position: Researcher at the Institute for Information Law (IViR), University of Amsterdam, the Netherlands
• Pages: 230-244

2014

Bart van der Sloot

230

3

Privacy as human flourishing

Could a shift towards virtue ethics strengthen privacy protec-

tion in the age of Big Data?

by Bart van der Sloot, researcher at the Institute for Information Law (IViR), University of Amsterdam, the

Netherlands. This research is part of the project “Privacy as virtue”, which is financed by the Dutch Scientific

Organization (NWO).

© 2014 Bart van der Sloot

Everybody may disseminate this ar ticle by electroni c means and make it available for downlo ad under the terms and

conditions of the Digita l Peer Publishing Licence (DPPL). A copy of the license text may be obtaine d at http://nbn-resolving.

de/urn:nbn:de:0009-dppl-v3-en8 .

Recommended citation: Ba rt van der Sloot, Pr ivacy as human flourishing: Could a shi ft towards virtu e ethics strengthen

privacy prote ction in the age of Big Data? 5 (2014) JIPITEC 230 , para 1.

Abstract: Privacy is commonly seen as an

instrumental value in relation to negative freedom,

human dignity and personal autonomy. Article 8

ECHR, protecting the right to privacy, was originally

coined as a doctrine protecting the negative freedom

of citizens in vertical relations, that is between citizen

and state. Over the years, the Court has extended

privacy protection to horizontal relations and has

gradually accepted that individual autonomy is

an equally important value underlying the right

to privacy. However, in most of the recent cases

regarding Article 8 ECHR, the Court goes beyond

the protection of negative freedom and individual

autonomy and instead focuses self-expression,

personal development and human flourishing.

Accepting this virtue ethical notion, in addition to the

traditional Kantian focus on individual autonomy and

human dignity, as a core value of Article 8 ECHR may

prove vital for the protection of privacy in the age of

Big Data.

A. Introduction

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With the recent revelations by Snowden about

the NSA, privacy and the value of privacy have

once again moved to the center of public debate.

While some argue that privacy is dead, others feel

that it is now more than ever that privacy needs

protection. What all agree upon is that the concept

and value of privacy need careful rethinking, as

the traditional approach to privacy seems unt

to address the threats posed by Big Data, cloud

computing and proling. Big Data, for the purpose of

this study, is dened as gathering massive amounts

of data without a pre-established goal or purpose,

about an undened number of people, which are

processed on a group or aggregated level through

the use of statistical correlations. A reformulation

of privacy and a shift in its underlying value would

not be a novelty; privacy has changed its meaning,

denition and scope many times. It is quite clear

that in different epochs,1 in different cultures2 and

in different situations,

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privacy plays a different role.

What makes privacy even more difcult to grasp is

that its value and meaning differs from person to

person; what one would qualify as a violation of his

privacy, the other would disregard as unimportant

and trivial. Consequently, the value of privacy is

difcult to grasp and dene. Moreover, in contrast

to autonomy, freedom, or dignity, which are

commonly ascribed an intrinsic value, in literature,

Keywords: Privacy, Big Data, Negative Freedom, European Convention on Human Rights