On The Legal Protection Of Privacy

As a type of legal right, the incipiency of the Right to Privacy may be trackedback to the 19th Century. In 1890, Warren and Brandeis firstly used the concept of theRight to Privacy. The United State thereafter gradually established the legal positionof the Right to Privacy. In the middle 20th Century, the "Universal Declaration ofHuman Rights", "the International Covenant on Civil and Political Rights" and otherinternational human rights documentaries acknowledged the status of a basic humanright of the Right to Privacy. Thus, The Right to Privacy became a topic that speciallyconcerned and widely argued by jurisconsults all over the world. The start of focus onand discussion of the Right to Privacy in China is later than other countries, so thereare still many points, either in theory or in practice, urgently need to be clarified. Thefocus of the thesis is how to establish the legal protection of the Right to Privacy. Thisthesis is divided into five parts.The Introduction Part is meant to explain the background and researchmethodology of the Right to Privacy research, and to specify the purpose and researchvalue of this thesis.The key topic of the Chapter 1 discusses the concept of the Right to Privacy. Thisthesis gave the concept of the Right to Privacy, by conclusion and summary of varioustheories, as "the Self-Decision Right on the affairs of private sphere in order to protectthe human dignity". Through the analysis of the relation between the Right to Privacyand the Right of Freedom and the Right of Personality, the conclusion of the Right toPrivacy embedding the double characteristics of both the Right of Freedom and theRight of Personality can be drawn, and it will be clearer to establish the independentmeaning and legal status of the Right to Privacy.In the second Chapter I point out the justification of the protection of the Right toPrivacy as a legal right. In western theory and practice, the recognizing of the Right toPrivacy is derived from the liberalism tradition of the partition of public sphere andprivate sphere. On the matter of the value of the Right to Privacy, Germany believesthe protection of the Right to Privacy is established on the basis of the human dignity;while American emphasizes that the foundation is the individual autonomy under thethought of liberalism, though Germany and American follow different ways on thevalue of the Right to Privacy, the substantial nature of the value of the Right toPrivacy is the same and "human dignity" and "autonomy" are unified on the commonground of "Human Being". The value of the Right to Privacy reflects the spirit of themodern Humanism, it is not only a basic inherent natural right, but a fundamentalright as objective value order.Chapter 3 is relating the general measures and principles of establishing theprotection of the exercise of the Right to Privacy. The Right to Privacy as afundamental right shall be subject to the general principles and restriction provisionsof the exercise of general rights. This thesis believes that "consent" is the generalprinciple of the protection and exercise of the Right to Privacy;the "public interest"and "other's rights" are the reasons to restrict the Right to Privacy, and the "lawful"and "non-arbitrary" are the conditions to restrict the Right to Privacy. The nature ofthe restriction of the Right to Privacy is the conflicts between the Right to Privacy andother rights or powers, while the solution is the "interest balancing test". The interestbalancing test are, first to take basic balancing by using "the Hierarchy of Values" ,and secondly, in the event of particular case judging, "the Principle of Proportion"shall be abided by.Through analysis on the conflict between the Right to Privacy and other threekinds of rights (or power) of the Right to Life, Press Freedom and Surveillance,Chapter 4 is going to explore the detailed interest balancing elements during theconflicts between the Right to Privacy and other fundamental rights (power), and tryto find the general resort to solve the rights conflicts on the Right to Privacy. ThisChapter deems the developing process of the Right to Privacy is just the process ofgaming and combating between the Right to Privacy and other personal rights, othersrights, other entities' rights and state power, and during such process, the Right toPrivacy has been receiving more and more concerns, meanwhile, the protection ofthe Right to Privacy has been gradually strengthened.The last chapter addresses the protection of the Right to Privacy in China. Alongwith the development of economy and technology, and the awakening of the humanitydignity, it becomes an urgent issue for China to establish the legal protection systemof the Right to Privacy. Through the comparison of the legal protection system of theRight to Privacy among U.S., Germany and Japan, and the legal protection systemwith distinct Chinese characteristics shall be established through taking referencesfrom the experiences of the developed countries.