The Right to Privacy

There is 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, protection of 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 government surveillance.

The right to privacy is guaranteed in article 12 of the Universal Declaration of Human Rights (UDHR).  The right to privacy is also guaranteed 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.”

In 2012, the Association of Southeast Asian Nations (ASEAN) member states issued a non-binding declaration reaffirming their commitment to respecting and promoting human rights. Article 21 of the ASEAN Human Rights Declaration closely mirrors the privacy protection in the UDHR, providing:

Every person has the right to be free from arbitrary interference with his or her privacy, family, home or correspondence including personal data, or to attacks upon that person’s honour and reputation. Every person has the right to the protection of the law against such interference or attacks.

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.(1) As such, although the Constitution of India does not expressly contain a right to privacy, the right can nevertheless be derived from other rights and freedoms that are constitutionally guaranteed.  

As with the right to freedom of expression, a restriction on the right to privacy must comply with the three-part test for such restrictions.  As noted by the Supreme Court of India in the 2017 judgment:

Right to privacy cannot be impinged without a just, fair and reasonable law. It has to fulfil the test of proportionality i.e. (i) existence of a law (ii) must serve a legitimate State aim and (iii) proportionate.(2)

As set out below, we consider specific aspects of the right to privacy and the impact that the internet has had on the enjoyment of this right.