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Published: Fri, 02 Feb 2018
The right to privacy
Discuss The Following Comment:
‘The right to privacy is illusory. Humans do not need a right to privacy to flourish and society is better off without conferring legal protection to privacy’.
Privacy is interpreted differently in many different countries. In western countries, particularly the UK and the USA it is seen as protection against the invasion of one’s privacy by the government, companies and other individuals. Some countries have incorporated these rights into their privacy laws and constitutions. Many countries have laws which limit privacy such as in the case of taxation law, which requires individuals to share their personal information regarding earnings and income with government. In some countries freedom of speech may be in conflict with individual privacy laws and in particular where some laws require public disclosure of matters which other countries and cultures consider to be private.
“The evolution of a right to privacy parallels the development of the humanist tradition. A right of privacy is predicated on the belief that each human being has intrinsic value, that is, is valuable in and of him or herself. Respect for this belief becomes the fundamental source of all human rights.”
The Definition Of Privacy
What is privacy and is it a human right that actually is important?
Privacy is an inherent human right, and is required for maintaining the human condition with respect and dignity. Article 12 of the Universal Declaration of Human Rights states that:
“No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.”
The privacy of individuals may be termed as the right to determine how information concerning the individual is communicated to others and how that information is controlled.
Further, privacy has been determined to be the right to be left alone; freedom from interruption, intrusion, embarrassment or accountability; control of the disclosure of personal information; protection of the individual’s independence, dignity and integrity; secrecy, anonymity and solitude; the right to protection from intrusion into your personal life. The right to privacy involves rules governing the collection and handling of personal data (such as credit information and medical records), the protection of physical autonomy (including the right to control personal matters), the right to limit access to oneself (for example, controlling communication and intrusion into domestic and work space) and the right to control one’s identity. Privacy conflicts with: freedom of speech; national security; police powers of surveillance; personal morality; freedom of information and electronic commerce.
The Current Legal Protection Accorded To Privacy
The Position In The UK
There is no right to privacy in UK law even after the Human Rights Act 1998, and Parliament has shown a lack of enthusiasm for creating such a right. However, the judiciary has developed the doctrine of breach of confidence in a way that provides a limited right to privacy, particularly since the Human Rights Act 1998. Although Article 8 of the European Convention on Human Rights creates a right to respect for private life, this is not a right to privacy. Also Article 8 must be balanced with Article 10 which guarantees freedom of expression, which is significant when the press is alleged to have breached an individual’s right to privacy.
In Malone v Metropolitan Police Commissioner (1979) the UK courts held that telephone tapping by the police could not be unlawful in the UK as there was no right to privacy at common law that could be breached. This contrasts with the USA where the right to privacy is a protected right.
If there is no right to privacy in the law, how can privacy be protected in the UK? There are two ways: Firstly, the right to confidence and secondly, through Article 8 of the European Convention on Human Rights.
Those who allege invasion of privacy generally rely on an action in ‘breach of the right to confidence’. The common law right to confidence is a recognised right. The essence of the right to confidence may be summarised as misuse of private information. The courts in the UK have established, in many decisions, that publishing or obtaining information or unauthorised photographs amounts to a breach of confidence in situations where it is considered that a ‘duty of confidence’ exists. The duty of confidence is considered to exist when a person possesses information that someone in their position should know would reasonably be regarded as confidential. It is a breach of confidence if the information is detrimental to the owner or the subject of such information and used without the consent of the owner. A person can be subject to a duty of confidence by a written or oral contract or agreement or depending upon the nature of the relationship between the owner of the information and the person in whom he or she confides.
The law of breach of confidence is a flexible doctrine which can be used to protect private information in many situations. Lawyers must not disclose to third parties information given to them by their clients; doctors must preserve the confidence of their patients (except in exceptional circumstances where notification of the police is permitted) as must priests. In a case in 1988, Stephens v Avery, the court recognised that a duty of confidence could arise in relation to the details of a sexual relationship between two women. Also the law of ‘breach of confidence’ has been used extensively to protect trade secrets and commercially sensitive information. Employees owe a duty of confidence to their employers, either under the terms of a written contract or by an implied term of loyalty and fidelity.
The case of Prince Albert v Strange provides a good illustration of how the right to confidence protects privacy. The defendant who was a publisher was in possession of copies of private etchings of the Royal Family at home. The publisher had attained them from an employee of a printer to whom Prince Albert had entrusted the plates. While the right to privacy was not explicitly recognised at the time, it was argued on behalf of Queen Victoria and Prince Albert that they had a right to keep private, art works that they had commissioned, for their personal enjoyment. Ruling in favour of Queen Victoria and Prince Albert, the court held that:
“Every man has a right to keep his own sentiments, if he pleases. He has certainly a right to judge whether he will make them public or commit them only to the sight of his friends.”
The court further held that the publication of these etchings invaded the Royal Family’s right to privacy, in the sense of a right to control one’s possessions and enjoy them.
The Position In The United States
The US Supreme Court uses the concept of privacy to designate a zone surrounding individuals, the family, and the home, into which the government may not intrude without a compelling interest. There are only a few fundamental rights that have been recognised by the US Supreme Court under the classification of privacy. The US Supreme Court in Lawrence v Texas declared that a Texas statute that criminalised gay and lesbian sexual intercourse was unconstitutional as it violated their right to privacy. The right to privacy in the US has also been held to protect privacy interests in the home, the marital relationship, the decision of both married and single women to use birth control and to terminate a pregnancy.
The Position In Canada
In Canada there are no explicit privacy rights in the Constitution and Charter of Rights and Freedoms. However, the Courts have recognised the individual’s right to have a reasonable expectation of privacy with regard to Section 8 of the Charter, which grants rights to protection against unreasonable search and seizure.
Privacy in Canada is regulated at the federal and provincial levels. Federally, privacy is protected by the Federal Privacy Act 1982 and the Personal Information and Electronic Documents Act 2001 (PIPEDA).
Canadian law protects a right to respect for privacy. The Supreme Court of Canada in Aubry v Les éditions Vice-Versa Inc awarded C$2,000 compensation to a 17-year-old girl when a magazine published, without her knowledge or consent, a photograph of her sitting on the steps of a public building.
The Position In Australia
Australian Privacy Law consists of a number of Commonwealth Statutes which cover particular activities and sectors, some State and Territory laws which have limited effect and the normal protections of common law. There has been no recognition of tort in the protection of privacy until recently. On occasion there have been common law actions in for breach of confidence, trespass, nuisance and defamation.
The High Court decision in Lenah v ABC which was a case involving allegations of breach of corporate privacy, discussed the possibility of finding a tort if an appropriate case involving an individual was brought forward. In 2003, a District Court Judge in the state of Queensland handed down a decision in the case of Gross v Purvis for breach of privacy, awarding the plaintiff AUD$178,000.
The principal Australian Federal statute is the Privacy Act 1988 (Cwth) which partially gives effect to Australia’s commitment to Article 17 of the International Covenant on Civil and Political Rights (ICCPR) and the Organisation for Economic Co-operation and Development Guidelines (OECD). It contains Information Privacy Principles (IPP), reflecting those in the OECD Guidelines that apply to the activities of most Australian Commonwealth Government agencies. There is a separate set of laws regarding the treatment of consumer credit information, which were added in 1989, and which applies to all private and public sector institutions. Another area which is covered is the use of the Tax File Number (TFN) issued by the Australian government, where the entire population is subject to Guidelines issued by the Privacy Commissioner, which are effected as subordinate legislation. The Privacy Act originated from public protests in the mid-1980s against a government proposal to introduce a national identity card, termed ‘The Australia Card Scheme’. The proposal proved controversial and was dropped, but use of the Tax File Number was enhanced to match income from multiple sources. The Privacy Act provided some protection. The use of the Tax File Number has since been extended to include benefits administration as well as taxation. In 1990 some controls over this matching activity were included in the Privacy Act.
After much controversy, in April of 2000 the Australian government legislated to include the private sector in privacy protection by establishing the Privacy Amendment (Private Sector) Act of 2000. This law establishes the National Privacy Principles which are based on principles for the fair handling of personal information previously established by the Federal Privacy Commissioner. Private companies are now required to comply with these laws although they may apply to the Privacy Commissioner to have their own Code of Practice approved which contain equivalent principles to the National Privacy Principles. The Act has been widely criticized as failing to meet international standards for the protection of privacy.
Freedom of Information laws have been enacted in all of the States and Territories which permit individuals to access and correct their personal information.
Arguments For A Right To Privacy
Is privacy important? What contribution does it make to human flourishing, if any? What is the evidence, one way or another?
In the US case of Traylor v State it was held that:
“Constitutional rights must be enforced by courts even against the legislature’s powers, and privacy in particular must be enforced even against majoritarian sentiment. Shaktman. Indeed, the overarching purpose of the Florida Declaration of Rights along with its privacy provision is to “protect each individual within our borders from the unjust encroachment of state authority from whatever official source, into his or her life.”
Justice Kogan in Krischer v McIver, said that at a grass-roots level, the role of the Florida State Justices and Judges is to uphold and guarantee the protections provided by these basic human rights. This is a judge’s greatest calling and heaviest burden. It is an obligation for Justices to shoulder by their oath of office, binding them to uphold individual liberty even in the face of public or official opposition. To protect the liberties of the individual against public encroachment is uniquely the task of courts. Therefore, the Justices are obliged to protect individuals against the overreaches of government.
Arguments Against A Right To Privacy
People who have a strong compulsion for making even basic decisions on how individuals should live their lives will formulate a number of ‘straw-man’ arguments against the right to privacy. These are people who insist that the bedroom door be left open, so that they may peer inside and regulate the conduct they find there.
One potential objection is that it would make child abuse a privacy issue, and that nothing could be done to protect abused children. Nowhere in the Constitution is there a right that has been thought so absolute that it overrides the state’s interest in protecting children from abuse. In all cases, from freedom of religion and the press to the right to due process, the State has been able to defend laws that look to violate these provisions on the surface if a compelling state interest is being served. Protecting children from abuse is a compelling state interest.
On the most intimate and personal matters concerning an individual’s life, each individual ought to be free to make his or her decisions without the government telling them what they can and cannot do. If their actions to not affect others, they should be free to affect themselves.
While there is controversy over a so-called legal right to privacy found in the penumbra of certain Amendments, this controversy can be ended by making explicit that which some argue now only exists implicitly. The moral quest at all times is to change the law from what the law is to what the law ought to be. The law ought to be an institution that leaves people a private sphere of decision making where governments will not intrude.
A privacy Amendment would work to align the law with these moral facts. A privacy Amendment would narrow the gap between what the law is, and what the law ought to be.
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