Understanding Consumer Privacy: A Review and Future Directions

Academy of Marketing Science Review,  2008  by D, Clinton Jr,  Saini, Amit

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While Prosser's framework has been accepted by most U.S. courts and is the basis of most common law conceptions of privacy (McWhirter and Bible 1992), many critics argue that it does not go far enough in addressing all violations of a personal privacy. In fact, some argue that it favors organizations and businesses and unduly influences their conceptions of privacy (Foxman and Kilcoyne 1993; Nowak and Phelps 1997). For example, the "false light" tort does not apply to the transmission of factual consumer information from one firm to another because the data is not false and has not been made public (Graham 1987) (also see Shibley v. Time, Inc. 1974). Likewise, the "intrusion" tort does not apply to situations where the consumer voluntarily provides a firm with personal information and the firm then transfers this information to a third party for purposes unrelated to the intent of the original disclosure (McWhirter and Bible 1992) (also see Dwyer v. American Express Company 1995). As a result, the collection and dissemination of consumer information by firms rarely violates these more specific formulations of the right to privacy (Foxman and Kilcoyne 1993; Nowak and Phelps 1997; Phelps et al. 2000).

Due to both the limitations and ubiquity of Prosser's conception of privacy, some legal scholars have argued that privacy should not be considered as a multidimensional concept, but as a unitary concept in order to increase its applicability across a broader range of privacy issues (Benn 1971; Bloustein 1964; Gavison 1980; Graham 1987). These scholars argue that privacy should not be categorized by different interests, but should be based on the more general idea of protecting human dignity (Bloustein 1964; Gavison 1980). This broader conceptualization of privacy is based on peoples' control over their autonomy and accessibility. These scholars argue that this unitary concept of privacy based on control provides a wider base of protection for a broader range of privacy violations.

In line with the unitary conception of the right to privacy, various definitions of privacy have emerged. For instance, privacy has been defined as the "claim of individuals, groups, or institutions to determine for themselves, when, how, and to what extent information about them is communicated to others" (Westin 1967, pp. 6-7). This definition specifically focuses on the ability of individuals to control access to and dissemination of their personal information. This focus on information control is also present in popular definitions of privacy provided by Jourard (1966), Fried (1968), and Parker (1974). Other definitions of privacy focus on the social aspects of control and access (Altman 1975). For instance, Van Deg Haag (1971, p.149) argues that "privacy is the exclusive access of a person to a realm of his own. The right to privacy entitles one to exclude others from (a) watching, (b), utilizing, and (c) invading his private realm" (Introna and Pouloudi 1999). The social component is also echoed in definitions by Gross (1967), who focuses on the right to keep personal relationships private; Posner (1981), who focuses on privacy as freedom from unwanted intrusion by others (similar to Warren and Brandeis); and Johnson (1989), who focuses on privacy as the ability to immune oneself from the judgments of others.