Private Law Theory

ABSTRACT
Privacy and autonomy are closely linked. In privacy theory and law, there is agreement that privacy is necessary for autonomy. In order to make decisions according to our own preferences and live our lives according to our own goals, we need protected, ie private, physical and metaphorical spaces. If privacy enables autonomy, then a robust theory of autonomy is necessary for a good understanding of privacy. However, legal understandings of privacy often rely on a simplistic view of the autonomous ‘self’, conceived as an entity detached from interpersonal relations and the socio-cultural environment. This chapter aims to contribute to existing conceptions of privacy with an understanding of autonomy that accounts for the interplay between the self-relatedness and sociality of individuals. The chapter begins by explaining the relationship between privacy and autonomy, and why a strong theory of autonomy is needed to protect privacy. It then looks at examples of privacy violations in the digital environment that also harm autonomy, and discusses these against the backdrop of existing theories of autonomy. However sophisticated and helpful these theories are, they nevertheless seem unable to account for the specificity of the challenges to autonomy posed by digital technologies. A contextual approach to autonomy, inspired by Helen Nissenbaum’s understanding of privacy, seems better suited to grasping the specificity of the current challenges to autonomy posed by digitalisation. According to the proposed contextual-integrity theory of autonomy, autonomy can best be conceptualised in terms of norms that distinguish between legitimate and illegitimate heteronomous influences in particular social contexts. What is special about the challenges that digitalisation and AI pose to autonomy is that they blur the previous relative separation between the respective contexts. As a result, heteronomous influences that would be considered inadmissible and a violation of autonomy under ‘analogue’ conditions become increasingly possible and normalised. The chapter concludes by discussing the implications of a contextual understanding of autonomy for privacy theory and law.

Orrù, Elisa, On the Nexus between Privacy and Autonomy: A Contextual Integrity Approach (September 8, 2025), Max Planck Institute for the Study of Crime, Security and Law Working Paper Forthcoming.