Privacy Law and Commodification: The Influence of the Possessive Individual

This article examines the relationship between privacy and commodification, drawing on the historical treatment of the photographic subject in English law. It argues that contemporary privacy law provides ineffective protection against market-driven threats because it has been shaped by the commercial forces it seeks to restrain. Photography was a key stimulus to early privacy laws, which emerged to protect individuals from market-driven violations by enabling them to withhold their image from exposure. Yet despite its market-sceptic rhetoric, English privacy law has historically relied on liberal-capitalist notions of property and discreetly fostered the economic value of image. Post-Human Rights Act English law has amplified this tendency by introducing the fiction of the ‘possessive individual’ and embracing self-commodification as a means to protect privacy. Such strategies render individuals more susceptible to commodification by constructing the legal subject in explicitly market-based terms. This pro-market notion of privacy buttresses and legitimises the hyper-commodifying business models of contemporary digital industry.