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  This module is a resource for lecturers  

 

Privacy: what it is and why it is important

 

Privacy  is a fundamental human right. The right to privacy "constitutes an absolute imperative for…individual[s]" (Eissen, 1967, cited in De Meyer, 1973) and is enshrined in international human rights treaties, such as Article 8 of the European Convention on Human Rights of 1950, Article 11 of the American Convention on Human Rights of 1969, Article 12 of the Universal Declaration on Human Rights of 1948, and Article 17 of the International Covenant on Civil and Political Rights of 1966. This right is also recognized in Article 16 of the Convention on the Rights of the Child of 1989, Article 14 of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families of 1990, Article 7 of the Charter of Fundamental Rights of the European Union of 2000, and Article 22 of the Convention on the Rights of Persons with Disabilities of 2006. Conceptions of privacy vary and include the right to be free from observation; the right to be left alone; the capacity to keep one's thoughts, beliefs, identity, and behaviour secret; and the right to choose and control when, what, why, where, how, and to whom information about oneself is revealed and to what extent information is revealed (Cooley, 1907; Fried, 1970; Janis, Kay and Bradley, 2000; Maras, 2009; for a detailed analysis of these and other conceptions of privacy, see Koops et al., 2017). The latter understanding of privacy (i.e., the right to choose and control information about oneself) links privacy to information (or data) protection. 

Privacy enables the fulfilment of, and is closely connected to, other human rights. Privacy is a necessary condition for freedom of expression, thought, religion, assembly, and association (see A/HRC/39/29; A/HRC/23/40 and A/HRC/29/32, para. 15; A/HRC/31/66, paras. 73-78 and A/72/135, paras. 47-50). The right to privacy is also linked to the right to self-determination. Article 20(1) of the African Charter on Human and People's Rights of 1981 holds that "[a]ll peoples shall have the right to existence. They shall have the unquestionable and inalienable right to self-determination. They shall freely determine their political status and shall pursue their economic and social development according to the policy they have freely chosen." An essential aspect of self-determination is the ability to make choices and act in ways of their own choosing free from coercion ( personal autonomy). This choice extends beyond physical actions to include actions online. An inherent aspect of an individual's privacy is personal autonomy and the right to self-determination. This right to self-determination enables individuals to lead an authentic life by being free to make choices and choose and control what information is accessed, disclosed, and shared about them.

Note

According to a 2018 Report of the United Nations High Commissioner for Human Rights, "[o]verbroad privacy regulations may also amount to undue limitations of other rights, in particular freedom of expression, for example when a disproportionate regulation interferes with legitimate news reporting, artistic expression or scientific research" ( A/HRC/39/29).

Another inherent aspect of an individual's privacy is human dignity, a contested concept (Rodriguez, 2015), which refers to a person's "sense of self-worth, … [that a person has] a duty to develop and respect in …[oneself] and a duty to protect in others" (Schroeder, 2017). Human dignity is considered the foundation of human rights and is included in the preambles of numerous international human rights instruments, including: the Universal Declaration of Human Rights (UDHR) of 1948, the International Covenant on Civil and Political Rights (ICCPR) of 1966, the International Covenant on Economic, Social and Cultural Rights (ICESCR) of 1966, the African Charter on Human and People's Rights of 1981, the United Nations Convention on the Rights of the Child (UNCRC) of 1989, the United Nations Declaration on the Elimination of All Forms of Racial Discrimination of 1963, and the United Nations Convention on the Elimination of All Forms of Discrimination against Women of 1979. While not expressly included in the European Convention on Human Rights of 1950, it has been described in case law as "the essence" of the human rights instruments ( Pretty v. United Kingdom, 2002). Human dignity is also considered an essential principle in many constitutions around the globe (Shultztiner and Carmi, 2014).

 
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