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EPIC --- Privacy and Human Rights Report 2006

The Right to Privacy

The recognition of privacy is deeply rooted in history. There is recognition of privacy in the Qur'an[13] and in the sayings of Mohammed.[14] The Bible has numerous references to privacy.[15] Jewish law has long recognized the concept of being free from being watched.[16] There were also protections in classical Greece and ancient China.[17]

Legal protections have existed in Western countries for hundreds of years. In 1361, the Justices of the Peace Act in England provided for the arrest of peeping toms and eavesdroppers.[18] In 1765, British Lord Camden, striking down a warrant to enter a house and seize papers wrote, "We can safely say there is no law in this country to justify the defendants in what they have done; if there was, it would destroy all the comforts of society, for papers are often the dearest property any man can have."[19] Parliamentarian William Pitt wrote, "The poorest man may in his cottage bid defiance to all the force of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storms may enter; the rain may enter – but the King of England cannot enter; all his forces dare not cross the threshold of the ruined tenement."[20]

Various countries developed specific protections for privacy in the centuries that followed. In 1776, the Swedish Parliament enacted the Access to Public Records Act that required that all government-held information be used for legitimate purposes. France prohibited the publication of private facts and set stiff fines for violators in 1858.[21] The Norwegian Criminal Code prohibited the publication of information relating to "personal or domestic affairs" in 1889.[22]

In 1890, American lawyers Samuel Warren and Louis Brandeis wrote a seminal piece on the right to privacy as a tort action, describing privacy as "the right to be left alone."[23] Following the publication, this concept of the privacy tort was gradually picked up across the United States as part of the common law.

The modern privacy benchmark at an international level can be found in the 1948 Universal Declaration of Human Rights, which specifically protects territorial and communications privacy.[24] Article 12 states:

No one should be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks on his honour or reputation. Everyone has the right to the protection of the law against such interferences or attacks.

Numerous international human rights treaties specifically recognize privacy as a right.[25] The International Covenant on Civil and Political Rights (ICCPR), Article 17,[26] the United Nations (UN) Convention on Migrant Workers, Article 14,[27] and the UN Convention on Protection of the Child, Article 16[28] adopt the same language.[29]

On the regional level, various treaties make these rights legally enforceable. Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (ECHR) states:

(1) Everyone has the right to respect for his private and family life, his home and his correspondence. (2) There shall be no interference by a public authority with the exercise of this right except as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health of morals, or for the protection of the rights and freedoms of others. [30]

The Convention created the European Commission of Human Rights and the European Court of Human Rights to oversee enforcement. Both have been active in the enforcement of privacy rights and have consistently viewed Article 8's protections expansively and interpreted the restrictions narrowly.[31] The Commission found in 1976:

For numerous Anglo-Saxon and French authors, the right to respect "private life" is the right to privacy, the right to live, as far as one wishes, protected from publicity. . . . In the opinion of the Commission, however, the right to respect for private life does not end there. It comprises also, to a certain degree, the right to establish and develop relationships with other human beings, especially in the emotional field for the development and fulfillment of one's own personality.[32]

The Court has reviewed member states' laws and imposed sanctions on numerous countries for failing to regulate wiretapping by governments and private individuals.[33] It has also reviewed cases of individuals' access to their personal information in government files to ensure that adequate procedures exist.[34] It has expanded the protections of Article 8 beyond government actions to those of private persons where it appears that the government should have prohibited those actions.[35]

Other regional treaties are also beginning to be used to protect privacy. Article 11 of the American Convention on Human Rights sets out the right to privacy in terms similar to the Universal Declaration.[36] In 1965, the Organization of American States proclaimed the American Declaration of the Rights and Duties of Man, which called for the protection of numerous human rights, including privacy.[37] The Inter-American Court of Human Rights has begun to address privacy issues in its cases.

[13] an-Noor 24:27-28 (Yusufali); al-Hujraat 49:11-12 (Yusufali).
[14] Volume 1, Book 10, Number 509 (Sahih Bukhari); Book 020, Number 4727 (Sahih Muslim); Book 31, Number 4003 (Sunan Abu Dawud).
[15] Richard Hixson, Privacy in a Public Society: Human Rights in Conflict 3 (1987). See also, Barrington Moore, Privacy: Studies in Social and Cultural History (1984).
[16] See Jeffrey Rosen, The Unwanted Gaze (Random House 2000).
[17] Id. at 5.

[18] James Michael, supra, at 15. Justices of the Peace Act, 1361 (Eng.), 34 Edw. 3, c. 1.
[19] Entick v. Carrington, 1558-1774 All E.R. Rep. 45.
[20] Speech on the Excise Bill, 1763.

[21] The Rachel affaire. Judgment of June 16, 1858, Trib. pr. inst. de la Seine, 1858 D.P. III 62. See Jeanne M. Hauch, Protecting Private Facts in France: The Warren & Brandeis Tort is Alive and Well and Flourishing in Paris, 68 Tulane Law Review 1219 (May 1994).
[22] See Prof. Dr. Juris Jon Bing, Data Protection in Norway, 1996, available at
<http://www.jus.uio.no/iri/forskning/lib/papers/dp_norway/dp_norway.html>.

[23] Warren and Brandeis, supra.

[24] Universal Declaration of Human Rights, adopted and proclaimed by General Assembly resolution 217 A (III) of December 10, 1948, available at <http://www.un.org/Overview/rights.html>.

[25] See generally, Marc Rotenberg, ed., The Privacy Law Sourcebook: United States Law, International Law and Recent Developments (EPIC 2003).
[26] International Covenant on Civil and Political Rights, adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of December 16, 1966, entry into force March 23 1976, available at <http://www.unhchr.ch/html/menu3/b/a_ccpr.htm>.
[27] International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, adopted by General Assembly resolution 45/158 of December 18, 1990, available at <http://www.unhchr.ch/html/menu3/b/m_mwctoc.htm>.
[28] Convention on the Rights of the Child, adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of November 20, 1989, entry into force September 2, 1990, available at <http://www.unhchr.ch/html/menu3/b/k2crc.htm>.
[29] See generally, Lee Bygrave, Data Protection Pursuant to the Right of Privacy in Human Rights Treaties, 6 International Journal of Law and Information Technology 247-284 (1998), available at <http://folk.uio.no/lee/publications>.

[30] Council of Europe, Convention for the Protection of Human Rights and Fundamental Freedoms, (ETS No: 005) open for signature November 4, 1950, entry into force September 3, 1950, available at <http://conventions.coe.int/Treaty/en/Treaties/Html/005.htm>.

[31] Nadine Strossen, Recent United States and International Judicial Protection of Individual Rights: A Coparative Legal Process Analysis and Proposed Synthesis, 41 Hastings Law Journal 805 (1990).

[32] X v. Iceland, 5 Eur. Comm'n H.R. 86.87 (1976).

[33] European Court of Human Rights, Case of Klass and Others: Judgement of 6 September 1978, Series A No. 28 (1979). Malone v. Commissioner of Police, 2 All E.R. 620 (1979). See Note, Secret Surveillance and the European Convention on Human Rights, 33 Stanford Law Review 1113, 1122 (1981).
[34] Judgement of 26 March 1987 (Leander Case).
[35] Id. at 848-49.

[36] Signed November 22, 1969, entered into force July 18, 1978, O.A.S. Treaty Series No. 36, at 1, O.A.S. Off. Rec. OEA/Ser. L/V/II.23 dec rev. 2, available at <http://www.hrcr.org/docs/American_Convention/oashr.html>.
[37] O.A.S. Res XXX, adopted by the Ninth Conference of American States, 1948 OEA/Ser/. L./V/I.4 Rev (1965).