Towards Comprehensive Protections
Privacy laws and protections have often been developed in response to events and current news developments. For instance, laws preventing communications surveillance usually emerge after years of abuse, followed by government inquests and intense media attention, both followed by and led by public concern. Through Parliamentary action, or cases decided by courts, a strong, yet piece-meal approach to privacy has emerged over time where, for instance, privacy of communications and privacy of medical records do not receive equal legal protection. Furthermore, industries such as the financial sector may be regulated, while others, such as the marketing and advertising industries are free to process personal information as they see fit. Despite the fact that earlier constitutional and human rights regimes have overlooked the right to privacy, it has nonetheless come to be regarded as a fundamental human right over time. For instance, the German constitutional court ruled in the 1980s that the protection of human dignity, its most basic constitutional protection, required the government to protect the privacy of its citizens. The Irish Supreme Court interpreted the right of privacy as emerging from the Christian and democratic nature of the Irish state to ensure the dignity and freedom of the individual in a democratic society. Meanwhile, in the U.S. the right to privacy emerged from the shadows of constitutional rights such as the right of free expression, and the right not to have your home entered and your documents seized. Similar cases continue to emerge around the world: the Indian and Japanese Supreme Courts see privacy implicit under the right to liberty; the Norwegians see it as the general legal protection of 'personality'; following U.S. jurisprudence, India sees privacy as a constitutional right under Article 21 on the right to liberty and more recently as a matter of dignity; New Zealand sees privacy as the right inferred under the protection against search and seizure by the state; and Singapore protects it under a general duty of confidences.
Modern constitutional frameworks tend to protect privacy more explicitly, as they model themselves on more recent international conventions, devised in response to preceding atrocities, as the world called for respect of individual rights to prevent history from repeating. The Universal Declaration of Human Rights declares in article 12 that no one should be subjected to arbitrary interference with his privacy, family, home or correspondence. This was later repeated in Article 17 of the International Covenant on Civil and Political Rights. The European Convention on Human Rights ensures that all 47 member states of the Council of Europe protect privacy of the home, the family, and correspondence.
Constitutions across Asia sometimes protect privacy, but this may be limited. For instance, the Bangladeshi constitution only protects the right to privacy of the home and communications under Article 43. In other countries, the right to privacy across all sectors and industries is respected in the constitutions, leading to comprehensive privacy protection, rather than the piece-meal approach of protecting privacy only in specific environments and conditions. Although the U.S. Constitution uses language similar to the Bangladeshi Constitution, over the years the Supreme Court has ruled that the protection of the home and correspondence of illegal search and seizure actually qualifies as the protection of the privacy of the individual from general interference by the Government. Meanwhile, the 2007 Thai constitution explicitly protects informational privacy under a right to data protection.
These legal protections for privacy are not inviolable, however. Unlike laws to protect against torture and capital punishment which may never be contravened, most other rights are seen as violable under certain circumstances. For instance, the European Convention on Human Rights states, immediately after establishing the right to privacy:
"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."
The complex balancing act of privacy protection in the face of societal needs emerges from this and similar language around the world. Interferences with privacy are permitted to combat crime and disorder, and to protect national security. But these must still be done with care: the interference must be 'reasonable', according to U.S. and Canadian law; or 'proportionate' and 'in accordance with law' according to European rules, to protect against arbitrary and excessive invasions of privacy. The Bangladeshi Constitution, however, follows the North American model where rights may be restricted in a 'reasonable' manner. We are uncertain as to the qualification of 'reasonable' in Bangladeshi law.
Every day, with the development of new laws and technologies, we are reinterpreting and redefining our understanding of the meaning of 'national security', 'reasonable' and 'proportionate' interference. These terms are not fixed in stone, just as the dynamic of privacy and security remains in flux. In North America, the Courts have expended considerable effort to qualify and define what constitutes 'reasonable' over decades of jurisprudence, and Asian courts will also have to do so at some point. Most recently, in July 2009 the Indian High Court in Mumbai issued its opinion in the case of whether it should overrule the ban on homosexual intercourse. The Court reviewed Indian jurisprudence on the right to privacy and reviewed foreign case law, including cases from the U.S. and Europe to conclude that banning homosexual intercourse was an unjust interference with privacy. The Court then held that:
"it is not within the constitutional competence of the State to invade the privacy of citizens’ lives or regulate conduct to which the citizen alone is concerned solely on the basis of public morals. The criminalisation of private sexual relations between consenting adults absent any evidence of serious harm deems the provision's objective both arbitrary and unreasonable. The state interest “must be legitimate and relevant” for the legislation to be non-arbitrary and must be proportionate towards achieving the state interest. If the objective is irrational, unjust and unfair, necessarily classification will have to be held as unreasonable. The nature of the provision of Section 377 IPC and its purpose is to criminalise private conduct of consenting adults which causes no harm to anyone else. It has no other purpose than to criminalise conduct which fails to conform with the moral or religious views of a section of society. The discrimination severely affects the rights and interests of homosexuals and deeply impairs their dignity."1
The use of foreign judgements may thus be of increasing value as countries try to understand and develop their constitutional language into national laws.
- 1. Nas Foundation vs. Government of NCT of Delhi, WP(C) No.7455/2001, Decided July 2, 2009 in the High Court of New Delhi.