Developing Privacy Rights in Nineteenth-Century Germany: A Choice between Dignity and Liberty?

Legal historian James Whitman has claimed that privacy rights in Germany are fundamentally different from privacy rights in America. According to Whitman, German privacy rights are predicated on dignity and require state intervention to uphold them, while American privacy rights protect the individual against state intervention. This paper argues that the history of rights in Germany, particularly the history of privacy rights, is far more complicated. Constitutional protections for privacy rights emerged in German-speaking Europe in the 1830s, and these privacy rights, especially protections for the home and privacy of correspondence, were conceived of as protecting individual freedom against the state. This notion of privacy rights was also emphasized in the 1848 Frankfurt Constitution. Ultimately, the German conception of privacy rights, rooted in an emphasis on individual liberties against state power, extended even into twentieth-century German constitutional development.