Scope and the Right to Privacy
Module 4: Privacy and Security Online
In the current data-driven era, the right to privacy has gained increasing recognition as a fundamental right, both in itself and as an enabler of other rights. This includes enabling the right to freedom of expression, for instance by allowing individuals to share views anonymously in circumstances where they may fear being censured for those views, by allowing whistle-blowers to make protected disclosures, and by enabling members of the media and activists to communicate in a secure manner beyond the reach of unlawful government interception.
The key provision under international law regarding the right to privacy is contained in article 17 of the International Covenant on Civil and Political Rights (ICCPR). Importantly, sub-article (1) provides that no one shall be subjected to arbitrary or unlawful interference with his (or her) privacy, family, home or correspondence, nor to unlawful attacks on his (or her) honour and reputation. Sub-article (2) goes on to provide that everyone has the right to the protection of the law against such interference or attacks.
In the African context, the African Charter on Human and Peoples’ Rights (African Charter) does not contain an express provision on the right to privacy. However, it has been argued that the right can – and should – be read into the African Charter through to the right to respect for life and integrity of the person, the right to dignity, and the right to liberty and security of the person.(1) This argument is based on the approach taken by the African Commission on Human and Peoples’ Rights (African Commission) in Social and Economic Rights Action Centre and Another v Nigeria and the comparative jurisprudence from the Supreme Court of India in Justice KS Puttaswamy (Retd) and Another v Union of India and Others.(2)
It bears mention that other African regional instruments do recognise the right to privacy. For example, article 10 of the African Charter on the Rights and Welfare of the Child provides that:
“No child shall be subject to arbitrary or unlawful interference with his privacy, family home or correspondence, or to the attacks upon his honour or reputation, provided that parents or legal guardians shall have the right to exercise reasonable supervision over the conduct of their children. The child has the right to the protection of the law against such interference or attacks.”
Additionally, the African Union (AU) Convention on Cyber Security and Personal Data Protection (AU Data Protection Convention) – commonly referred to as the Malabo Convention – recognises in its preamble the commitment of the AU to build the information society and to protect “the privacy of its citizens in their daily or professional lives, while guaranteeing the free flow of information”. However, the Data Protection Convention is not yet in force, as it has received the requisite number of ratifications.
At the domestic level, more than 50 African constitutions, inclusive of amendments and recent reviews, include reference to the right to privacy.(3)