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Chapter: 

Background

Privacy as a fundamental right

The right to privacy is articulated in a number of international treaties and conventions, such as The Universal Declaration of Human Rights 1948, Article 12 and The International Covenant on Civil and Political Rights 1966, Article 17. These provisions are key to the universal recognition of privacy and are instrumental in showing governments’ commitment to the protection of fundamental rights and freedoms. In turn, the right to privacy appears in most of the world’s constitutions.

The role of constitutions

Constitutions offer substantial protections to the right to privacy. They regulate the relationship between citizens and the State and thus form the bedrock of civil, political and human rights protections.

Constitutions enable democratic deliberations and provide a safe environment where the legislature, the Executive, the judiciary, and citizens can together create the legal rules, necessary to give life to constitutional provisions. Informed and empowered by a sound framework of democratic principles, law makers can then further examine the adequacy of existing laws and adjust the latter accordingly to ensure compliance with the constitutional text.

This is particularly the case for privacy.  Constitutional protections of privacy have enabled human autonomy and curtailed significant government initiatives to interfere with individual rights in many countries around the world. The indefinite retention of DNA and fingerprints of suspects, whether subsequently acquitted or not; the right to stop and search UK citizens without grounds for suspicion; warrantless wiretapping in Germany; and the criminalization of homosexual behaviour in India are all examples of privacy intrusive practices that have been declared unlawful thanks to the existence of constitutional protections.

The right to privacy, however, is a complex phenomenon. It has found many different expressions within the world’s constitutions, including to the right to protection against searches of the home, protection of personal communications and correspondence, the right to have one’s data protected from misuse, the right to family life, habeas data, i.e. the right to see what data someone holds about you and rectify it if erroneous, etc.  Privacy is also often linked with the right to free expression and the right to dignity.

Many of these constitutional statements impose a negative obligation on the State to not interfere with individuals’ right to privacy/private life/home/correspondence.  In addition, most modern constitutions also create a positive obligation upon the State.  The latter places a duty on the State to ensure that the right is not violated by others. This requires that States grant additional privacy protections by passing enabling legislation in relevant areas and protecting the right of privacy of the citizen against other institutions within society.

Privacy is also a qualified right

Human rights can be absolute or qualified. Absolute rights, such as the right to life, can never be derogated from. Qualified rights can be derogated from but only in specified circumstances. These may include, but are not limited to, national security, public safety, the prevention of disorder or crime, the protection of the rights and freedoms of others.

The European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 serves as a useful example of how such qualifications may find expression in a constitutional text:

Article 8

Everyone has the right to respect for his private and family life, his home and his correspondence.

There shall be no interference by a public authority with the exercise of this right except as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health of morals, or for the protection of the rights and freedoms of others.


“In accordance with the law” and “necessary in a democratic society” provide additional flexibility to the judiciary in applying the provision on a case by case basis (Sunday Times Newspapers v UK). “In accordance with the law” has been interpreted to require specific and detailed laws that allow the individual to foresee the consequences of her behavior and adjust the latter accordingly. “Necessary in a democratic society” requires that the measure applied is proportionate to the pursued goal.

Lessons

Based on a study of over 60 constitutional privacy provisions, we were able to identify the following lessons learned:

  • the need for a clear statement of the duty of the State to protect and secure the right to privacy
  • the right to information should include right to personal information
  • qualification of the right to privacy is necessary to guide Courts and Human Rights Commissions
  • the need to continuously question the quality of the law