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What would Warren and Brandeis think about the impact of Web 2.0 on privacy?

What would Warren and Brandeis think about the impact of Web 2.0 on privacy?

By Aristea Zafeiropoulou and Laura German.

During the last few years the advent of Web 2.0 applications, which mainly deal with user generated content, have provoked numerous privacy concerns. However, this is not the first time society has come across a challenge with regards to people’s privacy.

Back in 1890, two American lawyers, (Warren & Brandeis, 1890), expressed such a challenge by writing an article that addressed privacy as a significant area of concern. The article, entitled “The Right to Privacy” was written as a response to concerns due to the increase of photos of everyday people in the press. Their argument with regards to privacy is that a person has the right to privacy, if other people publish their photo in press without their expressed consent. However, that right is lost once they are the publishers themselves.

Interestingly enough, the Web 2.0 philosophy of sharing personal information seems to entirely contradict Warren and Brandeis’ argument regarding  the right to privacy; nevertheless people often express their concerns with regards to their privacy.

A Legal Standpoint 1

According to (Sellers, 2011) by permitting users to share more personal information than ever before, from photos to comments, social networking technologies have “increased levels of risk of data disclosure” (p. 9). Furthermore, he interestingly contends that “privacy no longer appears to be in the domain of the people in glossy magazines” (p. 13) and cases involving the general public are now being reported (refer to Applause Store Productions Ltd v Raphael [2008] – regarding the first claim bought against an alleged false and defamatory group about an individual on Facebook.)

Therefore, this leads to many interesting issues to consider, such as whether people tend to become mini-celebrities within their own circle of friends through the use of Web 2.0 technologies. Furthermore, it is of utmost importance to contemplate whether the generation that is currently growing up with social networking tools will appreciate the value of the right to privacy.

A Social Approach

Online privacy has become an area of heated debate, with those concerned about privacy being worried about its constant transformation, others being enthusiastic about the continuous technological innovation and individuals who are in between these two groups. Significantly, (Westin, 1991) has identified three different categories of people regarding their privacy attitudes: the privacy fundamentalists, the pragmatic and the unconcerned.

In 1890 Warren and Brandeis expressed a strong concern about the impact of the latest technological innovation (photos in the press) on privacy. Therefore, Warren and Brandeis with their work and interest in privacy, would definitely be preoccupied with the implications of the current technological innovations. As a result, they would definitely belong to the first group, the privacy fundamentalists.

What these two influential figures would have thought about privacy in light of the emergence of the Web will obviously never be known – but nevertheless provides something interesting to consider.

1Before the Human Rights Act (HRA) 1998 there was no right to privacy in the UK (Kaye v. Robertson [1991]); however, traditionally some privacy violations have been brought under the scope of the law of breach of confidence (Bainbridge, 2009, p. 323). Article 8 of the HRA establishes a right to privacy in the UK (Douglas v. Hello! Ltd (No 6) [2005]) that is usually actionable through breach of confidence. Article 8(1) states that: “Everyone has the right to respect for his private and family life, his home and his correspondence.” However, it must also be highlighted that privacy is not an absolute right (Article 8 (2)) and should be balanced with Article 10 – the right of ‘Freedom of Expression’.



Kramer, I.R., Birth of Privacy Law: A Century since Warren and Brandeis, Catholic University Law Review, vol.3, 703-724, 1990. http://heinonline.org/HOL/Page?handle=hein.journals/cathu39&div=28&g_sent=1&collection=journals [accessed 7 March 2011].

Sellars, S., Online privacy: do we have it and do we want it? A review of the risks and UK case law. European Intellectual Property Review, vol. 33(1), 9-17, 2011.

Turkington, R.C.,  Legacy of the Warren and Brandeis Article: The Emerging Unencumbered Constitutional Right to Informational Privacy. Symposium on the Right to Privacy. Northern Illionis University Law Review, vol. 10, 479-520, 1989-1990. http://heinonline.org/HOL/Page?handle=hein.journals/niulr10&div=25&g_sent=1&collection=journals [accessed 7 March 2011].

Warren, S., Brandeis, L. The Right to Privacy. Harvard Law Review, vol. IV, no. 5, 1890.http://groups.csail.mit.edu/mac/classes/6.805/articles/privacy/Privacy_brand_warr2.html [accessed 7 March 2011].

Westin, A. Harris-Equifax Consumer Privacy Survey 1991. Atlanta: Equifax, Inc, 1991.

Case Law

Applause Store Productions Ltd v Raphael [2008] EWHC 1781 (QB).

Douglas v. Hello! Ltd (No 6) [2005] 3 WLR 881.

Kaye v. Robertson [1991] FSR 62.


Human Rights Act 1998 – http://www.legislation.gov.uk/ukpga/1998/42/schedule/1 [accessed 7 March 2011].

Text Book

Bainbridge, D.I., Intellectual Property Law (7th edit.,) (London: Pearson Longman, 2009)

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