Privacy and confidentiality are words that are used often and interchangeably in the legal and dispute resolution world, yet there are key differences between the terms that are important to understand. Just what these differences are and how they affect information is a concept that is sometimes overlooked when engaging in a legal dispute. Many legal and alternative dispute resolution systems require confidentiality, but many people do not see the differences between this requirement and privacy surrounding the proceedings and information. A correct understanding is important because it can be the difference between complying with or violating a duty to remain confidential, and it can help a party protect information that they have or share completely. This article will highlight the key differences to help readers make the distinction and ensure they are using the terms correctly within the legal system.
Privacy and confidentiality are both forms of protection for a person’s information, yet how they protect them is the difference that makes each concept unique. Before diving into the differences between the two, it is also important to note that the two are often interchanged and confused simply because they deal with similar information. Starting with this similarity highlights the ways that these two concepts overlap and relate to one another, which will also help differentiate them. So as we continue to explore the differences, it is vital to remember that we are dealing with aspects of a person’s information and how that information is protected. To further demonstrate the similarities and differences, it is important, to begin with, definitions of each of the terms to ground the discussion.
Definition of Privacy:
Privacy is a state of shielding oneself or information from the public eye. It allows a person to be free from being observed or disturbed. It includes the right of a person to be left alone and it limits access to a person or their information. It includes the right of access to a person. Privacy applies specifically to the person that is being protected rather than the information that they share and is the personal choice of the individual rather than an obligation on the person that receives the information to keep it quiet. Privacy applies to everyone who interacts with the individual, as the individual controls how much someone is let into their life. Some common applications of privacy in the legal sense are:
- Search and Seizures: The Fourth Amendment to the United States Constitution creates a “reasonable expectation of privacy” by protecting a person’s home and person from unreasonable search and seizure. This protection limits what police officers can search through and examine without cause. This theoretically protects the person from unwanted access.
- Right to Privacy: While not a constitutional right in broad terms in the United States, many countries include a right to privacy in their bill of rights for their citizens. These laws protect the individual from the public eye in sensitive situations or from having their personal and private information shared in such a way that gives uncontrolled access to a person.
There are other examples of privacy in the legal sense, but these examples help demonstrate how privacy is used and compared to confidentiality.
Definition of Confidentiality:
Confidentiality, practically, is the act of keeping information secret or private. Instead of a general principle, confidentiality applies in certain situations where there is an expectation that the information shared between people will not be shared with other people. Confidentiality is an agreement between the parties that the sensitive information shared will be kept between the parties, and it involves someone with a fiduciary duty to the other to keep that information secret unless permission is given. This person is often a lawyer or doctor that has a duty to protect that information. It applies to and protects the information rather than the individual and prevents access to this information. It is narrower than privacy because it only applies to people with a fiduciary duty to keep things confidential. It also only applies to certain information shared and in certain legal and professional settings. Common types of confidentiality include:
- Lawyer-Client Confidentiality: When lawyers are representing a client or considering representing a client, they are bound by the duty to keep the information shared with them by the client confidential. This means that they are not allowed to share the information with anyone outside their firm unless the client permits them to do so. This is done so that information shared with an attorney cannot be used against you outside of that conversation.
- Doctor-Patient Confidentiality: Because medical information is considered private information, doctors will often have a similar duty of confidentiality that lawyers have. Doctors cannot share medical information without permission.
- Confidentiality Agreements: Confidentiality agreements are common when a person has received sensitive information through a job or conversation. Confidentiality agreements will usually be narrow and apply only to specific information that is agreed upon. The parties that the information was shared between will sign an agreement that they will not share the information with anyone else without permission.
- Confidential Proceedings; A common occurrence in the alternative dispute resolution world, there will often be negotiations and mediations where the parties are bound to confidentiality. This is often the default in mediations but can be contracted for or around in a mediation. This means that the parties to a mediation cannot share the information gathered with outside sources. It also means that the mediator cannot share the information they learn in confidence from one party with the other party without permission.
As demonstrated by these examples, an important aspect of confidentiality is that the person sharing the information holds the power to end the duty to confidentiality. The passive recipient is bound by the duty until they receive permission.
Key Differences between Confidentiality and Privacy:
With a basic understanding of the definitions of both privacy and confidentiality, it is important to now turn to the key differences between the two and why the differences are important. Because of their distinctions, they hold different functions within the legal system, and it is important to know how each term will play out. These distinctions include:
- The focus of Protection: The first major difference is the focus of the protection granted by each system. Privacy focuses on the overall person and protecting them. Confidentiality focuses on protecting information.
- Parameters of Protection: Another distinction is what each protects against. Privacy focuses on protecting a person from unwanted invasion and intrusion upon their person. Confidentiality focuses on keeping information contained and free from the public eye. Privacy tends to be outward protection, while confidentiality is inward protection.
- Parties Involved: Another difference is the parties involved in each. In privacy, anyone who is not the person protected is involved and has a responsibility to not interfere with the person’s right. In confidentiality, it is only the person with whom the information has been shared that is responsible for protecting the information. Additionally, confidentiality allows these people in, while privacy keeps everyone else out.
- Voluntariness: Privacy is voluntary, meaning that the person can choose how and when they will keep things private. Confidentiality is often a part of the duty of the person to keep the information secret, whether it is through an agreement or the people involved have a fiduciary duty.
- Nature: The final major difference is the nature of the term. Privacy is a right of a person. Each person can enforce the right to their privacy at a given time. Confidentiality is an agreement or a duty, meaning that there must be some kind of trust or relationship for the information to be shared and not all information shared is protected.
These differences illustrate how the ideas of privacy and confidentiality work together but are also separate concepts that need to be addressed differently. Privacy, for example, means that a person should be given agency to decide on how their life is shared with someone else. To step into a moment where confidentiality is necessary often requires the person with the information to exercise their right to privacy in allowing the other person into their lives and granting them access to their information. Confidentiality also protects the person’s privacy further, because it gives the sharer peace of mind that the information they shared will be shielded from the public’s eye. Yet, if a person asks for privacy on a matter, they may not be adequately protecting their interests because they did not invoke the duty that accompanies confidentiality. Understanding the terms and knowing when and how to use each one will ensure that person protects themselves and their information from the wrong eyes.
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