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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 plays a vital role in and of itself and in facilitating the right to freedom of expression.  For instance, reliance on the right to privacy allows individuals to share views anonymously in circumstances where they may fear being censured for those views, it allows whistle-blowers to make protected disclosures, and it enables members of the media 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 not contained in the African Charter on Human and Peoples’ Rights (ACHPR), the right to privacy of children is contained in article 10 of the African Charter on the Rights and Welfare of the Child (ACRWC), which 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 right to privacy has also been recognised in other regional and sub-regional instruments in the context of data protection, which is discussed further below.  Moreover, almost all African states guarantee this right under their domestic constitutions.(1)

    Interestingly, in 2017, the Supreme Court of India declared 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.  Although this has not been tested in the context of the ACHPR, there is arguably scope to read the right to privacy into other provisions of the African Charter.

    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:(3)

    “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 in the coming chapters, we consider specific aspects of the right to privacy and the impact that the internet has had on the enjoyment of this right.

    Footnotes

    1. 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, http://www.pulp.up.ac.za/images/pulp/books/journals/AHRY_2019/Power%202019.pdf. Back
    2. Justice K.S. Puttaswamy and Another v Union of India and Others, Petition No. 494/2012, 24 August 2017 (accessible at: http://supremecourtofindia.nic.in/supremecourt/2012/35071/35071_2012_Judgement_24-Aug-2017.pdf). Back
    3. NM and Others v Smith and Others, [2007] ZACC 6, 4 April 2007 at para 33 (accessible at: https://www.saflii.org/za/cases/ZACC/2007/6.html), citing with approval Bernstein and Others v Bester NNO and Others,[1996] ZACC 2, 27 March 1996 at para 77. Back