Intimacy, Confidentiality, and Power: Kiss and Tell as a Feminist Critique of Privacy Law

Abstract

The current principle of privacy and its enactment in law and policy is presented as a reified, universal value that is gender-neutral. However this article contends this presumption, and advances that privacy is an inconsistent area of law that has allowed for the oppression of women’s rights and interests. It will be proposed that the narrative of ‘kiss and tell’ stories offers access to substantive justice and equality by subverting legal and gender norms and deconstructing the concept of privacy. Using the tools of feminist legal theory and theoretical commentary, this argument forms four sections.

Firstly, it will be introduced that privacy is a value which is nebulous at best, and the reasons for critiquing privacy law using a perspective from feminist legal theory will be explored. Following this, the injustices perpetrated against women by the current state of privacy law will be outlined – particularly in the area of sexual information and sexuality. Using examples from both the UK and American jurisdictions, it will be submitted that privacy law is mired in patriarchal values.

Thirdly, the jurisprudence underpinning privacy law decisions on sexual relationships and the legal concepts of confidence and intimacy will be critically examined and deconstructed. Finally, drawing upon investigative research, anecdotal evidence, and critical analysis, it will be submitted that ‘kiss and tell’ narratives are the way forward to reconceptualise privacy. It will be recommended that kiss and tell stories have value in social communication and present a chance for women to engage in relevant public discourse, and more widely, gives law an opportunity to reach a new understanding of privacy appropriate in the modern age.