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    The Right to Privacy

    Module 4: Data Privacy and Data Protection

    There is an increasing recognition that the right to privacy is vital both in itself and due to its role in facilitating the right to freedom of expression. For instance, the right to privacy allows individuals to share views anonymously in circumstances where they may face repression or discrimination for those views; it also allows whistle-blowers to make protected disclosures and enables journalists and activists to communicate securely beyond the reach of unlawful government interception.

    The right to privacy is contained in article 17 of the International Covenant on Civil and Political Rights (ICCPR), which provides:

    “(1)       No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

    (2)        Everyone has the right to the protection of the law against such interference or attacks.”

    Although the right to privacy is not explicitly contained in the African Charter on Human and Peoples’ Rights (African Charter), article 9 of the Charter does encode protections for the right to receive information and express opinions:

    “1.       Every individual shall have the right to receive information.

    2.         Every individual shall have the right to express and disseminate his opinions within the law.”

    These, in addition to the African Charter’s protections for freedom against discrimination, liberty and security, freedom of assembly, health, and others, have prompted the argument that the implicit right to privacy should be ‘read into’ the African Charter as an inalienable component of those other rights.(1) While this approach has not been tested in relation to the Charter, it would follow the approach of the Supreme Court of India in its 2017 ruling that the right to privacy is protected as an intrinsic part of the right to life and personal liberty, and as part of the fundamental freedoms guaranteed by Part III of the Constitution of India.(2) As such, although the Constitution of India does not expressly contain a right to privacy, the right can nevertheless be read when considered in the context of the other rights and freedoms that are constitutionally guaranteed.

    The right to privacy of children is, however, explicitly contained in other regional and continental instruments. For example, article 10 of the African Charter on the Rights and Welfare of the Child (ACRWC) 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.”

    The 2019 Declaration of Principles on Freedom of Expression and Access to Information in Africa, adopted by the African Commission on Human and Peoples’ Rights (ACHPR), also explicitly acknowledges the right to privacy and calls on states to provide extensive protections for privacy and personal information.(3) Moreover, almost all African states guarantee this right under their domestic constitutions.(4)

    As with the right to freedom of expression, a limitation of the right to privacy must comply with the three-part test for a justifiable limitation. According to the South African Constitutional Court:(5)

    “A very high level of protection is given to the individual’s intimate personal sphere of life and the maintenance of its basic preconditions and there is a final untouchable sphere of human freedom that is beyond interference from any public authority. So much so that, in regard to this most intimate core of privacy, no justifiable limitation thereof can take place. But this most intimate core is narrowly construed. This inviolable core is left behind once an individual enters into relationships with persons outside this closest intimate sphere; the individual’s activities then acquire a social dimension and the right of privacy in this context becomes subject to limitation.”

    Set out below, we consider specific aspects of the right to privacy and the impact of the internet on the enjoyment of this right.


    1. Ayalew, ‘ Untrodden Paths Towards the Right to Privacy in the Digital Era under African Human Rights Law’ 12 International Data Privacy Law 1, (2022) (accessible at Back
    2. Justice K.S. Puttaswamy and Another v Union of India and Others, Petition No. 494/2012, (2017) (accessible at: Back
    3. Principles 40-42. Back
    4. At the domestic level, more than 50 African constitutions, inclusive of amendments and recent reviews, include reference to the right to privacy. Singh and Power, ‘The privacy awakening: The urgent need to harmonise the right to privacy in Africa’ African Human Rights Yearbook 3 (2019) 202 at p 202 (accessible at: See also for an updated list. Back
    5. NM and Others v Smith and Others, [2007] ZACC 6, (2007) at para 33 (accessible at:, citing with approval Bernstein and Others v Bester NNO and Others,[1996] ZACC 2, (1996) at para 77. Back