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Critical analysis on right to privacy

GAZI MD. MUIDUL HAQUE

gazimuid@hotmail.com
Department of Law, University of Barisal.

01. Conceptualization

1.1. What is privacy?

Privacy is a fundamental right, essential to autonomy and the protection of human dignity; serving as
the foundation upon which many other human rights are built.

Privacy enables us to create barriers and manage boundaries to protect ourselves from unwarranted
interference in our lives, which allows us to negotiate who we are and how we want to interact with
the world around us. Privacy helps us establish boundaries to limit who has access to our bodies,
places and things, as well as our communications and our information.

The rules that protect privacy give us the ability to assert our rights in the face of significant power
imbalances.

Frank LaRue stated “the right to privacy is essential for individuals to express themselves freely.
Indeed, throughout history, people‟s willingness to engage in debate on controversial subjects in the
public sphere has always been linked to possibilities fodoing so anonymously.”1

Privacy is essential to who we are as human beings, and we make decisions about it every single day.
It gives us a space to be ourselves without judgment, allows us to think freely without discrimination,
and is an important element of giving us control over who knows what about us.

1.2. Origin:

In the United States, an article in the December 15, 1890 issue of the, Harvard Law Review, written
by attorney Samuel D. Warren and future U.S. Supreme Court Justice, Louis Brandeis, entitled The
Right to Privacy, is often cited as the first implicit declaration of a U.S right to privacy. This approach
was a response to recent technological developments of the time, such as photography, and
sensationalist journalism, also known as "yellow journalism"2

Privacy rights are inherently intertwined with information technology. In his widely cited dissenting
opinion in Olmstead v. United States (1928), Brandeis relied on thoughts he developed in his 1890
article The Right to Privacy. But in his dissent, he now changed the focus whereby he urged making

1
UN Doc. A/HRC/17/27, 16 May 2011.
2
Warren and Brandeis, "The Right To Privacy" , 4 Harvard Law Review 193 (1890)
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personal privacy matters more relevant to constitutional law, going so far as saying "the government
[was] identified .... as a potential privacy invader." He writes, "Discovery and invention have made it
possible for the Government, by means far more effective than stretching upon the rack, to obtain
disclosure in court of what is whispered in the closet." By the time of Katz, in 1967, telephones had
become personal devices with lines not shared across homes and switching was electro-mechanical. In
the 1970s, new computing and recording technologies began to raise concerns about privacy, resulting
in the Fair Information Practice Principles.

1.3. Why does it matter?

In modern society, the deliberation around privacy is a debate about modern freedoms.

As we consider how we establish and protect the boundaries around the individual, and the ability of
the individual to have a say in what happens to him or her, we are equally trying to decide:

 The ethics of modern life;

 The rules governing the conduct of commerce; and,
 The restraints we place upon the power of the state.

Technology has always been intertwined with this right. For instance, our capabilities to protect
privacy are greater today than ever before, yet the capabilities that now exist for surveillance are
without precedent.

Perhaps the most significant challenge to privacy is that the right can be compromised without the
individual being aware. With other rights, you are aware of the interference - being detained,
censored, or restrained. With other rights, you are also aware of the transgressor - the detaining
official, the censor, or the police.

Increasingly, we aren‟t being informed about the monitoring we are placed under, and aren‟t equipped
with the capabilities or given the opportunity to question these activities.

Secret surveillance, done sparingly in the past because of its invasiveness, lack of accountability, and
particular risk to democratic life, is quickly becoming the default.

1.4. Is privacy a right?

Privacy is a qualified, fundamental human right. The right to privacy is articulated in all of the major
international and regional human rights instruments, including:

United Nations Declaration of Human Rights (UDHR) 1948, Article 12:

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“No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence,
nor to attacks upon his honor and reputation. Everyone has the right to the protection of the law
against such interference or attacks.”

International Covenant on Civil and Political Rights (ICCPR) 1966, Article 17:

“1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or
correspondence, nor to unlawful attacks on his honor or reputation. 2. Everyone has the right to the
protection of the law against such interference or attacks.”

The right to privacy is also included in:

 Article 14 of the United Nations Convention on Migrant Workers;

 Article 16 of the UN Convention on the Rights of the Child;
 Article 10 of the African Charter on the Rights and Welfare of the Child;
 Article 4 of the African Union Principles on Freedom of Expression (the right of access to
information);
 Article 11 of the American Convention on Human Rights;
 Article 5 of the American Declaration of the Rights and Duties of Man,
 Articles 16 and 21 of the Arab Charter on Human Rights;
 Article 21 of the ASEAN Human Rights Declaration; and
 Article 8 of the European Convention on Human Rights.

Over 130 countries have constitutional statements regarding the protection of privacy, in every region
of the world.

An important element of the right to privacy is the right to protection of personal data. While the right
to data protection can be inferred from the general right to privacy, some international and regional
instruments also stipulate a more specific right to protection of personal data, including:

 the OECD's Guidelines on the Protection of Privacy and Tran border Flows of Personal Data,
 the Council of Europe Convention 108 for the Protection of Individuals with Regard to the
Automatic Processing of Personal Data,
 a number of European Union Directives and its pending Regulation, and the European Union
Charter of Fundamental Rights,
 the Asia-Pacific Economic Cooperation (APEC) Privacy Framework 2004, and
 the Economic Community of West African States has a Supplementary Act on data protection
from 2010.

Over 100 countries now have some form of privacy and data protection law.
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1.5 Definition of right to privacy:

In recent years there have been only few attempts to clearly and precisely define a "right to privacy."
Some experts assert that in fact the right to privacy "should not be defined as a separate legal right" at
all. By their reasoning, existing laws relating to privacy in general should be sufficient.3 Other
experts, such as Dean Prosser, have attempted, but failed, to find a "common ground" between the
leading kinds of privacy cases in the court system, at least to formulate a definition. One law school
treatise from Israel, however, on the subject of "privacy in the digital environment", suggests that the
"right to privacy should be seen as an independent right that deserves legal protection in itself." It has
therefore proposed a working definition for a "right to privacy":

The right to privacy is our right to keep a domain around us, which includes all those things
that are part of us, such as our body, home, property, thoughts, feelings, secrets and identity.
The right to privacy gives us the ability to choose which parts in this domain can be accessed
by others, and to control the extent, manner and timing of the use of those parts we choose to
disclose.4

1.6. Privacy as an individual right:

Westin defines privacy as "the claim of individuals, groups, or institutions to determine for
themselves when, how, and to what extent information about them is communicated to others".

Each individual is continually engaged in a personal adjustment process in which he balances

the desire for privacy with the desire for disclosure and communication of himself to others,
in light of the environmental conditions and social norms set by the society in which he lives.
- Alan Westin, Privacy and Freedom, 1968. 5

Under liberal democratic systems, privacy creates a space separate from political life, and allows
personal autonomy, while ensuring democratic freedoms of association and expression.

1.7. As a collective value and a human right:

There have been attempts to reframe privacy as a fundamental human right, whose social value is an
essential component in the functioning of democratic societies.6 Amitai Etzioni suggests a

3
Yael Onn, et al., Privacy in the Digital Environment , Haifa Center of Law & Technology, (2005)
pp. 1-12
4
ibid
5
Westin, A. (1968). Privacy and freedom (Fifth ed.). New York, U.S.A.: Atheneum.
6
Johnson, Deborah (2009). Beauchamp, Bowie, Arnold, ed. Ethical theory and business. (8th ed.). Upper Saddle
River, N.J.: Pearson/Prentice Hall. pp. 428–442.
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communitarian approach to privacy. This requires a shared moral culture for establishing social
order.7 Leslie Regan Shade argues that the human right to privacy is necessary for meaningful
democratic participation, and ensures human dignity and autonomy. Privacy depends on norms for
how information is distributed, and if this is appropriate. Violations of privacy depend on context. The
human right to privacy has precedent in the United Nations Declaration of Human Rights: "Everyone
has the right to freedom of opinion and expression; this right includes freedom to hold opinions
without interference and to seek, receive and impart information and ideas through any media and
regardless of frontiers."8 Shade believes that privacy must be approached from a people-centered
perspective, and not through the marketplace.9

02. International perspective:

2.1. Privacy watch around the world:

Most countries give citizen rights to privacy in their constitutions. Among most countries whose
constitutions do not explicitly describe privacy rights, court decisions have interpreted their
constitutions to intend to give privacy rights.

Fig: Privacy Watch comparing with human right

Australia
In Australia there is the Privacy Act 1988. Privacy sector provisions of the Act apply to private sector
organizations with a link to Australia, including: 1. individuals, who collect, use or disclose personal
information in the course of a business. For example, a sole trader's business activities will be
regulated (unless it's a small business), but information gathered outside business activities won't be;

7
Etzioni, A. (2006). Communitarians. In B. S. Turner (Ed.), The Cambridge Dictionary of Sociology
(pp. 81-83). Cambridge, UK: Cambridge University Press.
8
Regan, P. M. (1995). Legislating privacy: Technology, social values, and public policy. Chapel Hill, U.S.: The
University of North Carolina Press.
9
United Nations. (1948). Universal Declaration of Human Rights. Retrieved October 7, 2006 from
http://www.un.org/Overview/rights.html
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2. Bodies corporate; and 3. Partnerships, unincorporated associations and trusts - any act or practice of
a partner, committee member or trustee is attributed to the organization. Organizations outside
Australia must comply with the provisions in some circumstances. Sending information out of
Australia is also regulated.10

Canada
Canadian privacy law is governed federally by multiple acts, including the Canadian Charter of Rights
and Freedoms, and the Privacy Act (Canada). Mostly this legislation concerns privacy infringement
by government organizations. Data privacy was first addressed with the Personal Information
Protection and Electronic Documents Act, and provincial-level legislation also exists to account for
more specific cases personal privacy protection against commercial organizations.

European Union

For Europe, Article 8 of the European Convention on Human Rights guarantees the right to respect
for private and family life, one's home and correspondence. The European Court of Human Rights in
Strasbourg has developed a large body of jurisprudence defining this fundamental right to privacy.
The European Union requires all member states to legislate to ensure that citizens have a right to
privacy, through directives such as the 1995 Directive 95/46/EC on the protection of personal data.
Although there are comprehensive regulations for data protection, some studies show that despite the
laws, there is a lack of enforcement in that no institution feels responsible to control the parties
involved and enforce their laws.11 The European Union is also championing for the 'Right to be
Forgotten' concept (which allows individuals to ask that links leading to information about themselves
be removed from internet search engine results) to be adopted by other countries.12

United Kingdom

In the United Kingdom, it is not possible to bring an action for invasion of privacy. An action may be
brought under another tort (usually breach of confidence) and privacy must then be considered under
EC law. In the UK, it is sometimes a defence that disclosure of private information was in the public
interest.13 There is, however, the Information Commissioner's Office (ICO), an independent public
body set up to promote access to official information and protect personal information. They do this
by promoting good practice, ruling on eligible complaints, giving information to individuals and
organisations, and taking action when the law is broken. The relevant UK laws include: Data

10
Privacy.gov.au. 2010-11-01. Retrieved 2012-01-01.
11
Burghardt, Buchmann, Böhm, Kühling, Sivridis A Study on the Lack of Enforcement of Data Protection Acts
Proceedings of the 3rd int. conference on e-democracy, 2009
12
http://bits.blogs.nytimes.com/2014/12/03/french-official-campaigns-to-make-right-to-be-forgotten-
global/?ref=technology
13
Does Beckham judgment change rules?, from BBC News (retrieved 27 April 2005)
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Protection Act 1998; Freedom of Information Act 2000; Environmental Information Regulations
2004; Privacy and Electronic Communications Regulations 2003. The ICO has also provided a
"Personal Information Toolkit" online which explains in more detail the various ways of protecting
privacy online.14

United States
Concerning privacy laws of the United States, individual as well as locational privacy is guaranteed
by the Constitution of the United States under the 4th amendment of the constitution . The Supreme
Court of the United States has found that other guarantees have "penumbras" that implicitly grant a
right to privacy against government intrusion, for example in Griswold v. Connecticut (1965). In the
United States, the right of freedom of speech granted in the First Amendment has limited the effects
of lawsuits for breach of privacy. Privacy is regulated in the U.S. by the Privacy Act of 1974, and
various state laws. The Privacy Act of 1974 only applies to Federal Agencies in the executive branch
of the Federal government.15

03. Bangladesh Perspective:

This concept of protection of privacy came into force in 1890 in the modern sense. After 1890 till
1971, the fate of the people of Bangladesh was not capable of being determined. So, the issue, “right
to privacy”, was never considered seriously. But in this age of information technology this right of
people is seriously invaded.

3.1. Right to privacy in the Bangladesh constitution

The Constitution of the People‟s Republic of Bangladesh provides a group of provisions, under part
III, which contain the fundamental rights. Unfortunately, the right to privacy is not specifically
mentioned in any of those provisions. Does it mean the constitution does not regard the right to
privacy so fundamental? 16
Some provisions of the People‟s Republic of Bangladesh has discussed
about privacy indirectly. There could be interpretation on it.

Right to Privacy as a Subset of Right to Life and Personal Liberty

Article 32 of the People‟s Republic of Bangladesh says “No person shall be deprived of life or
personal liberty save in accordance with law.” This article is similar with article 21 of the Indian
Constitution.

14
"Personal Information Toolkit" prepared by the Information Commissioner’s Office, UK.
15
"the privacy act". Freedom of information act. U.s department of state. 2015-05-22. Retrieved
2015-11-19
16
Zulhuda, S. (2013), Right to privacy: development Cases and Commentaries in Constitutional Law and Human
Rights in Malaysia, edited by Khairil Azmin Mokhtar, Malaysia: Thomson Reuters Malaysia Sdn Bhd, p 452.
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Kharak Singh v State of Uttar Pradesh,17 in this case, the Supreme Court of India first recognized that
there is a right to privacy under Article 21 of the Indian Constitution. The fact of this case is police
went to visit a house of a suspected person at night under police regulation. In the Judgment, the
Court says that “The fundamental rights of life and personal liberty have many attributes and some of
them are found in Article 19. If a person‟s fundamental right under Article 21 is infringed the State
can rely upon a law to sustain the action; but that cannot be a complete answer unless the said law
satisfies the test laid down in Article 19(2) so far as the attributes covered by Article 19(1) are
concerned. In other words, the State must satisfy that both the fundamental rights are not infringed by
showing that there is a law and that it does amount to a reasonable restriction within the meaning of
Article 19(2) of the Constitution. But in this petition no such defence is available, as admittedly there
is no such law. So the petitioner Kharak Singh could legitimately plead that his fundamental rights,
both under Articles 19(1)(d) and 21, were infringed by the State. Hence, on these grounds the
petitioner Kharak Singh was entitled to issue of a writ of mandamus directing the respondent- State of
Uttar Pradesh- not to continue visit to his house.”18

Right to Privacy as a Subset of Right to Protection of Home

Article 43 of the Bangladesh Constitution also guarantees the privacy of home and correspondence
and in communications.19 Article 43 say “Every citizen shall have the right, subject to any reasonable
restrictions imposed by law in the interests of the security of the State, public order, public morality or
public health-(a)to be secured in his home against entry, search and seizure; and (b) to the privacy of
his correspondence and other means of communication.” In the case of Bangladesh v. H.M. Ershad20
it was held that neither police officer, nor any other public functionary can enter into the house of any
citizen and conduct any search or seize anything unless he is duly authorized under any law. If the
restriction imposed has no nexus with the specified matters or is in excess of the requirement for
which it is imposed, or if the object can be achieved by any less rigorous means, or if the law does not
provide a way of checking arbitrary or illegal exercise of the power of search and seizure, it will be
found invalid.21 Moreover, in 2011, a women went to beauty parlour and found a hidden cctv. A write
petition has been filed by the Bangladesh Human Rights Foundation. In this case, The High Court
ordered the government to take out all close-circuit TV cameras from beauty parlours.22
05. Relation of media with privacy

17
1963 AIR SC 1295
18
ibid
19
Islam, M. (2002), Constitutional Law of Bangladesh, Bangladesh: Mullick Brothers, p. 276- 277.
20
[2009]8 MLJ 364.
21
See Islam, n.13 at 277.
22
News editor. (2011), Persona CCTV Probe Time Extended, bdnews24.com, 10 October. <
http://bdnews24.com/bangladesh/2011/10/13/persona-cctv-probe-time-extended>
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5.1. Safeguarding Identity of Children

The Juvenile Justice (Care and Protection of Children) Act lays down that the media should not
disclose the names, addresses or schools of juveniles in conflict with the law or that of a child in need
of care and protection, which would lead to their identification. The exception, to identification of a
juvenile or child in need of care and protection, is when it is in the interest of the child. The media is
prohibited from disclosing the identity of the child in such situations.

Similarly, the Convention on the Rights of the Child (CRC) stipulates that:

Article 16

1. No child shall be subjected to arbitrary or unlawful interference with his or her privacy,
family, or correspondence, nor to unlawful attacks on his or her honour and reputation.
2. The child has the right to the protection of the law against such interference or attacks.

Article 40 of the Convention, states that the privacy of a child accused of infringing penal law should
be protected at all stages of the proceedings.

5.2. Safeguarding Identity of Rape Victims

Section 228A of the Penal Code makes disclosure of the identity of a rape victim punishable.

"Crime reporters receive most of their stories from the police. Therefore, one has to be careful before
publishing the story. At times in the rigor of competitive journalism, if you decide to publish an
unverified story, as a good journalist you should present a counter-point. As a seasoned journalist it is
easy to sense when a story is being planted by the police. If you still want to carry the story, one has
to be careful not to taint the character of a person"

5.3. Trial by Media & Media Victimization

"In the Bar Dancers‟ case which was before the Bombay High Court, the petition made allegations of
all kinds against certain ministers. I did not report that, although I could have justified it by saying it is
part of the petition, and I was just doing my job. The allegation was neither backed by facts nor was it
of public interest. As a rule one should report on undisputed facts. Then again, with court reporting
one is treading on safer grounds, as opposed to other beats."

"In cases of rape when facts are part of the judgment, you report facts that are relevant to the
judgment or give you an insight on why the court took a certain view and add value to the copy. One
should avoid a situation where facts revealed are offensive or reveal the identity of the victim. The
past history of both the victim and the accused should not be reported."
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She admitted, that "Media reporting often gives the impression that the accused has committed the
crime or the media through its independent investigation wing has found a particular fact. When in
fact, it has relied entirely on the information given by the police and failed to question or verify the
facts by an independent source. The result is that most crime reporting is one-sided, because the
information received from the police is rarely questioned."

As per her, to a certain degree the publication of Tata–Radia conversations did violate Tata‟s privacy.
"Media needs to question itself prior to printing on how the information is of public interest. Of
course, as a journalist you do not want to lose out on a good story, but there needs to be gate keeping,
which is mostly absent in most of the media today."

In the Bofors pay-off case23 the High Court of Delhi, observed that, “The fairness of trial is of
paramount importance as without such protection there would be trial by media which no civilised
society can and should tolerate. The functions of the court in the civilised society cannot be usurped
by any other authority.”24 It further criticised the trend of police or the CBI holding a press
conference for the media when investigation of a crime is still ongoing. The court agreed that media
awareness creates awareness of the crime, but the right to fair trial is as valuable as the right to
information and freedom of communication.

If the suspect‟s pictures are shown in the media, identification parades of the accused conducted under
Code of Civil Procedure would be prejudiced. Under Contempt of Court Act, publications that
interfere with the administration of justice amount to contempt. Further, the principles of natural
justice emphasise fair trial and the presumption of innocence until proven guilty.

5.4. Sting Operations based on Indian perspective.

On 30 August, 2007 Live India, a news channel conducted a sting operation on a Delhi government
school teacher forcing a girl student into prostitution. Subsequent to the media exposé, the teacher
Uma Khurana25 was attacked by a mob and was suspended by the Directorate of Education,
Government of Delhi. Later investigation and reports by the media exposed that there was no truth to
the sting operation. The girl student who was allegedly being forced into prostitution was a journalist.
The sting operation was a stage managed operation. The police found no evidence against the teacher
to support allegations made by the sting operation of child prostitution. In this case, the High Court of
Delhi charged the journalist with impersonation, criminal conspiracy and creating false evidence. The
Ministry of Information and Broadcasting sent a show cause notice to TV-Live India, alleging the

23
Crl.Misc.(Main) 3938/2003
24
Ibid
25
WP(Crl.) No.1175/2007
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telecast of the sting operation by channel was “defamatory, deliberate, containing false and suggestive
innuendos and half truths."26

Section 5 of the Cable Television Networks (Regulation) Act, 1995 and the Cable Television Network
Rules (hereafter the Cable Television Networks Act), stipulates that no programme can be transmitted
or retransmitted on any cable service which contains anything obscene, defamatory, deliberate, false
and suggestive innuendos and half truths. The Rules prescribes a programming code to be followed by
channels responsible for transmission/re-transmission of any programme.

The programme code restricts airing of programmes that offend decency or good taste, incite
violence, contains anything obscene, defamatory, deliberate, false and suggestive innuendos and half
truths, criticises, maligns or slanders any individual in person or certain groups, segments of social,
public and moral life of the country and affects the integrity of India, the President and the judiciary.
The programme code provided by the Rules is exhaustive. The Act empowers the government to
restrict operation of any cable network it thinks is necessary or expedient to do so in public interest.

The court observed that false and fabricated sting operations violate a person‟s right to privacy. It
further, observed, "Giving inducement to a person to commit an offence, which he is otherwise not
likely and inclined to commit, so as to make the same part of the sting operation is deplorable and
must be deprecated by all concerned including the media.” It commented that while “…sting
operations showing acts and facts as they are truly and actually happening may be necessary in public
interest and as a tool for justice, but a hidden camera cannot be allowed to depict something which is
not true, correct and is not happening but has happened because of inducement by entrapping a
person."27

The court criticised the role of the media in creating situations of entrapment and using the
„inducement test‟. It remarked that such inducement tests infringe upon the individual's right to
privacy. It directed news channels to take steps to prohibit “reporters from producing or airing any
programme which are based on entrapment and which are fabricated, intrusive and sensitive.28

The court proposed a set of guidelines to be followed by news channels and electronic media in
carrying out sting operations. The guidelines direct a channel proposing to telecast a sting operation to
obtain a certificate from the person who recorded or produced the same certifying that the operation is
genuine to his knowledge. The guidelines propose that the Ministry of Information and Broadcasting
should set up a committee which would have the powers to grant permission for telecasting sting
operations. The permission to telecast a sting operation should be granted by the committee only if it

26
Ibid
27
ibid
28
ibid
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is satisfied about the overriding public interest to telecast the sting operation. The guidelines mandate
that, in addition, to ensuring accuracy, the operation should not violate a person‟s right to privacy,
"unless there is an identifiable large public interest” for broadcasting or publishing the material.
However, the court failed to define what constitutes 'larger public interest'.

06. Conclusion
Privacy is not recognized directly by constitution of many countries. But if we see the decision and
comment of different Courts, right to privacy is recognized as fundamental right. According to above
discussion, we can consider right to privacy in right to property, life and personal liberty and it is a
fundamental right. In the same time, right to privacy is recognized by many verses of Holy Qur‟an. In
addition, Court should play an active role in promoting the protection of citizen‟s right to privacy.
They can do this by interpreting the provision of Constitution.