Privacy is a fundamental human right. It underpins human dignity and other values such as freedom of association and freedom of speech. It has become one of the most important human rights of the modern age. Privacy is recognized around the world in diverse regions and cultures. It is protected in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and in many other international and regional human rights treaties. Nearly every country in the world includes a right of privacy in its constitution. At a minimum, these provisions include rights of inviolability of the home and secrecy of communications. Most recently written constitutions include specific rights to access and control one’s personal information. In many of the countries where privacy is not explicitly recognized in the constitution, the courts have found that right in other provisions. In many countries, international agreements that recognize privacy rights such as the International Covenant on Civil and Political Rights or the European Convention on Human Rights have been adopted into law.
Of all the human rights in the international catalogue, privacy is perhaps the most difficult to define. Definitions of privacy vary widely according to context and environment. In many countries, the concept has been fused with data protection, which interprets privacy in terms of management of personal information. Outside this rather strict context, privacy protection is frequently seen as a way of drawing the line at how far society can intrude into a person’s affairs. The lack of a single definition should not imply that the issue lacks importance. As one writer observed, “in one sense, all human rights are aspects of the right to privacy.”
Some viewpoints on privacy:
In the 1890s, future United States Supreme Court Justice Louis Brandeis articulated a concept of privacy that urged that it was the individual’s “right to be left alone.” Brandeis argued that privacy was the most cherished of freedoms in a democracy, and he was concerned that it should be reflected in the Constitution.
Robert Ellis Smith, editor of the Privacy Journal, defined privacy as “the desire by each of us for physical space where we can be free of interruption, intrusion, embarrassment, or accountability and the attempt to control the time and manner of disclosures of personal information about ourselves.”
According to Edward Bloustein, privacy is an interest of the human personality. It protects the inviolate personality, the individual’s independence, dignity and integrity.
According to Ruth Gavison, there are three elements in privacy: secrecy, anonymity and solitude. It is a state which can be lost, whether through the choice of the person in that state or through the action of another person.
The Calcutt Committee in the United Kingdom said that, “nowhere have we found a wholly satisfactory statutory definition of privacy.” But the committee was satisfied that it would be possible to define it legally and adopted this definition in its first report on privacy: The right of the individual to be protected against intrusion into his personal life or affairs, or those of his family, by direct physical means or by publication of information. The Preamble to the Australian Privacy Charter provides that, “A free and democratic society requires respect for the autonomy of individuals, and limits on the power of both state and private organizations to intrude on that autonomy…Privacy is a key value which underpins human dignity and other key values such as freedom of association and freedom of speech…Privacy is a basic human right and the reasonable expectation of every person.”
Privacy can be divided into the following separate but related concepts:
- Information privacy, which involves the establishment of rules governing the collection and handling of personal data such as credit information, and medical and government records. It is also known as “data protection”;
- Bodily privacy, which concerns the protection of people’s physical selves against invasive procedures such as genetic tests, drug testing and cavity searches;
- Privacy of communications, which covers the security and privacy of mail, telephones, e-mail and other forms of communication; and
- Territorial privacy, which concerns the setting of limits on intrusion into the domestic and other environments such as the workplace or public space. This includes searches, video surveillance and ID checks.
There are four major models for privacy protection. Depending on their application, these models can be complementary or contradictory. In most countries reviewed in the survey, several are used simultaneously. In the countries that protect privacy most effectively, all of the models are used together to ensure privacy protection.
- Comprehensive Laws
In many countries around the world, there is a general law that governs the collection, use and dissemination of personal information by both the public and private sectors. An oversight body then ensures compliance. This is the preferred model for most countries adopting data protection laws and was adopted by the European Union to ensure compliance with its data protection regime. A variation of these laws, which is described as a “co-regulatory model,” was adopted in Canada and Australia. Under this approach, industry develops rules for the protection of privacy that are enforced by the industry and overseen by the privacy agency.
- Sectoral Laws
Some countries, such as the United States, have avoided enacting general data protection rules in favor of specific sectoral laws governing, for example, video rental records and financial privacy. In such cases, enforcement is achieved through a range of mechanisms. A major drawback with this approach is that it requires that new legislation be introduced with each new technology so protections frequently lag behind. The lack of legal protections for individual’s privacy on the Internet in the United States is a striking example of its limitations. There is also the problem of a lack of an oversight agency. In many countries, sectoral laws are used to complement comprehensive legislation by providing more detailed protections for certain categories of information, such as telecommunications, police files or consumer credit records.
Data protection can also be achieved, at least in theory, through various forms of self-regulation, in which companies and industry bodies establish codes of practice and engage in self-policing. However, in many countries, especially the United States, these efforts have been disappointing, with little evidence that the aims of the codes are regularly fulfilled. Adequacy and enforcement are the major problem with these approaches. Industry codes in many countries have tended to provide only weak protections and lack enforcement.
- Technologies of Privacy
With the recent development of commercially available technology-based systems, privacy protection has also moved into the hands of individual users. Users of the Internet and of some physical applications can employ a range of programs and systems that provide varying degrees of privacy and security of communications. These include encryption, anonymous remailers, proxy servers and digital cash. Users should be aware that not all tools effectively protect privacy. Some are poorly designed while others may be designed to facilitate law enforcement access.
*Excerpt from Introduction to EPIC’s “Privacy and Human Rights 2003”