Valid Privacy and Valid Publicity of Information

Let us stop thinking that law depends on each individual State. Rather, all Rule of Law States are harmonious with what is juridical, according to the measure of each diligent culture—that is, according to how each humanity organized as a society manages to comply with the law. The form of the law is the result of the union of every way in which compliance is achieved in each legal relationship connected to the respective society. Clearly, the whole of the Rule of Law—created by the result of the union of the forms of Rule of Law States—is the totality of the way in which society as a whole complies with the law. Therefore, more than a Rule of Law (State), we are dealing with a World of Law, since the good (validity, justice) is only possible if in every legal relationship there is harmony with the law—that is, with the juridical “ought to be,” according to each particular case.

This sets the stage for the issue of privacy and publicity, which, as we can already conclude, has a profound juridical background. In reality, privacy is not a right, since it does not exist in the form of a right or a duty; its elements do not constitute a right nor, consequently, a corresponding duty. Privacy is the entirety of the phenomenon—that is, the whole form of the existence of what is private, which exists as a result (effect) of compliance with the law. The same occurs, for example, with dignity: these are abstract expressions that signify juridical vagueness (imprecision), yet they become concrete in specific cases when they exist in juridical conformity, according to what is appropriate in each case. Publicity, on the other hand, is indeed a duty, related to what is known as transparency, since it is a necessary form that allows what must be known—juridically speaking—to be known and understood, depending on the case.

However, it is not about just any publicity, nor about the existence of privacy without a defined meaning. It is about privacy and publicity with legal validity (valid privacy and valid publicity), that is, formed on the basis of juridical compliance—compliance with the whole norm created by the result of the union of norms. Norms are forms created by the result of the union of the principles and rules of law—that is, of the conditions that must be fulfilled for the exercise of juridical freedom to exist, including respect for juridical limits. In other words, they ensure what is permitted and thus prevent what is prohibited, based on the entirety of what is defined through law: the full form of rights and duties and, ultimately, the full form of juridical freedom.

The test to determine whether something is a right or a duty is to confirm whether or not it is necessary for freedom. Freedom exists when each person is free in the specific case, based on what is juridically permitted and prohibited—that is, when the case is valid (in juridical harmony). This is where it becomes clear what must exist privately and what publicly in a given case. What is private must exist to the extent necessary for freedom, and the same applies to what is public. 

With this contribution, we can overcome confusion such as the idea that, depending on how information is classified, it must automatically remain private or public. That is an anti-juridical formalism, based on the notion that form determines substance juridically—that merely because information carries a label of “private” or “public,” it is juridically so. A form is valid only if it is harmonious with the juridical ought-to-be; that is the juridical form that corresponds to juridical substance. This allows for the valid classification and management of information according to how the juridical ought-to-be applies. Hence, we speak of valid transparency, valid confidentiality, and, in general, valid dignity—that is, valid freedom as sender, intermediary, recipient, authority, third party, etc.

Finally, it is essential to clarify that the foundations of law are more than what are commonly known as general principles of law. A foundation is that which grounds and ultimately forms what is valid—validity itself. Within this, of course, are juridical principles, understood as specific expressions (concretizations, parts) of the foundation, as well as juridical rules. That is why compliance with the law—and therefore juridical certainty—is possible: the foundations clarify how each norm proceeds, that is, how it must—and therefore can—be fulfilled. This allows us to conclude with the evident integrity of the law: it will never be possible to determine whether something should be private or public, juridically, under a partialized (incomplete, arbitrary) dimension of the law—for example, by relying exclusively on a norm about privacy or access to information. Justice is precisely what is adjusted to what is juridical, according to the case; injustice is culpability, any form of juridical non-compliance.

Hence, lawyers must possess professional juridical knowledge and operational capacity regarding the foundations of law. With the message of the completeness of law, it becomes clear that juridical foundations are not part of a branch of law known as jurisprudence (there are no branches of law, law is a whole), nor that practical legal areas are based solely on the “direct” content of norms and that this alone constitutes the practical (real, effective) exercise of lawyering. Law is one; everything is connected. What clarifies, grounds, and forms everything juridically is the foundation of law—that is, the juridical ought-to-be. In this way, lawyers can diligently (professionally) manage preventive and corrective cases related, for example, to the juridical nature (form) of information and the corresponding rights and duties (effects) linked to it, with the deontological dynamic—and within it, the ontological dimension—that the digital environment entails. This is tied to the obvious complexity of the analog (that which exists in atoms), that is, in general, to the particularity of life connected with humanity. Fortunately, everything is measured according to the case, where all becomes concrete, and where, if diligence exists, everything is addressed juridically—but only if the law is clear in the abstract (without depending on a case different from the case of its form), since its form is, as such, its mode of existence.

Let us not create unnecessary forms presented as norms on “privacy” or “publicity,” or on artificial intelligence (AI). First, let us know, recognize, organize, simplify, and apply what is already clear; only then will it be possible to determine what complement is necessary. Even more so in the era of legaltech, which, when it exists in a valid form—that is, in juridical harmony—and is used diligently by legal professionals, can significantly enhance optimal juridical “communicational” management (primarily voluntarily-based, exceptionally corrective), universally. To conclude firmly: this does not depend on whether one is connected to what is known as “common law” or “civil law,” nor on whether one is in the east, west, north, or south (or in a mission/existence outside the planet). Valid cultural plurality is precisely that which is harmonious with what is juridical. Law is (only) one; juridical freedom is one. Let us realize it.

Prof. Dr. Camilo Alfonso Escobar Mora, is founder of LEGADLLY, an executive program for lawyers on legal validity and the effectiveness of the Rule of Law, with examples of digital advertising. Contact: contact@legadlly.ca