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EPIC --- Privacy and Human Rights Report 2006

Defining Privacy

Of all the human rights in the international catalogue, privacy is perhaps the most difficult to define.[3] 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.[4] 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."[5]

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.[6]

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."[7]

According to Edward Bloustein, privacy is an interest of the human personality. It protects the inviolate personality, the individual's independence, dignity and integrity.[8]

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.[9]

The Calcutt Committee in the United Kingdom said, "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.[10]

The Preamble to the Australian Privacy Charter provides, "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."[11]

Aspects of Privacy

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.

[3] James Michael, Privacy and Human Rights 1 (UNESCO 1994).

[4] Simon Davies, Big Brother: Britain's Web of Surveillance and the New Technological Order 23 (Pan 1996).
[5] Volio, Fernando, "Legal Pesonality, Privacy and the Family" in Henkin (ed), The International Bill of Rights (Columbia University Press 1981).

[6] Samuel Warren and Louis Brandeis, The Right to Privacy, 4 Harvard Law Review 193-220 (1890).

[7] Robert Ellis Smith, Ben Franklin's Web Site 6 (Sheridan Books 2000).

[8] Privacy as an Aspect of Human Dignity, 39 New York University Law Review 971 (1964).

[9] Privacy and the Limits of Law, 89 Yale Law Journal 421, 428 (1980).

[10] Report of the Committee on Privacy and Related Matters, Chairman David Calcutt QC, 1990, Cmnd. 1102, London: HMSO, at 7.

[11] "The Australian Privacy Charter," published by the Australian Privacy Charter Group, Law School, University of New South Wales, Sydney (1994).