Introduction

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):

• 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.

As technology rapidly evolves so do the considerations for the right to privacy, which has remained high on the international human rights law agenda in recent years. In 2016, the United Nations (UN) General Assembly passed a resolution advocating for the protection of the right to privacy, particularly in the digital realm, urging states to enact measures to prevent violations of this right.(1) In 2018, the United Nations High Commissioner for Human Rights released a report emphasizing the challenges facing privacy in the digital age.(2) This report outlined key issues such as growing digital footprints, data sharing, and biometric projects lacking adequate safeguards. Additionally, it highlighted concerns about mass surveillance, cybercrimes, and attempts to undermine encryption and anonymity. In 2020, the High Commissioner’s report on the impact of new technologies on human rights in assemblies underscored the importance of secure communications in organizing peaceful protests.(3) It cautioned against technology-enabled surveillance, which poses significant risks to human rights during assemblies and contributes to the constriction of civic space in many countries.

In 2021, the UN High Commissioner for Human Rights presented the report on Privacy in the Digital Age, which builds on reports from previous reports but focuses on artificial intelligence (AI) in recognition that “AI systems can facilitate and deepen privacy intrusions”.(4) Such intrusions could include “entirely new applications as well as features of AI systems that expand, intensify or incentivize interference with the right to privacy, most notably through increased collection and use of personal data.”

The 2022 report on Privacy in the Digital Age focused on the misuse of intrusive hacking tools; the critical role of encryption in safeguarding the right to privacy and other rights; and extensive monitoring of public areas.(5) The report underscores the potential dangers of establishing pervasive surveillance and control systems, which could jeopardize the cultivation of vibrant and rights-respecting societies. Also 2022, in reaction to the swift and extensive gathering of personal data purportedly aimed at addressing the COVID-19 crisis between 2020 and 2022, the United Nations Special Rapporteur on Privacy published a document detailing the application of principles such as restricting data usage to specific purposes, erasing data, and exhibiting or pre-emptively ensuring accountability in the handling of personal information collected by governmental bodies during the pandemic.(6)

In the African context, the African Charter on Human and Peoples’ Rights (African Charter) does not contain an express provision for 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.(7) 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.(8)

It bears mention that other African regional instruments do recognise the right to privacy.(9)

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.”

In February 2021, the African Commission on Human and Peoples’ Rights (ACHPR) passed Resolution No. 473, highlighting the imperative to confront the human rights ramifications of AI, robotics, and other emerging technologies in Africa.(10) The resolution underscores apprehension regarding the extensive impact of AI technologies, robotics, and other emerging technologies on human rights, including the right to privacy.

Notably, the long-awaited African Union Convention on Cyber Security and Personal Data Protection (Malabo Convention) was enacted in 2023. It recognises in its preamble the commitment of the AU to build an information society and to protect “the privacy of its citizens in their daily or professional lives while guaranteeing the free flow of information”. If further endeavours to establish a comprehensive legal structure for electronic commerce, data protection, and the regulation of cybercrime and cybersecurity across the continent. It mandates member states to adopt domestic legislation in each of these policy domains, aligning with the diverse standards and principles delineated within the convention. At the domestic level, more than 50 African constitutions, inclusive of amendments and recent reviews, include reference to the right to privacy.(11) Out of 55 African states, 36 have data protection laws, with 3 states having draft laws.(12)

It is highly likely that fighting for the right to privacy will continue to be a pressing battle as new and more complex digital advancements attempt to erode this fundamental right and all it enables. It is equally likely that the regulation of technology may have implications for the right to privacy – both positive and negative.