Privacy Rights/Culture and Politics/Fundamental and protected

Privacy Rights

Is there general and widespread belief that this right is a fundamental right that should generally be protected (and that exceptions should be rare)?

The right to privacy is expressed in many places: Article 12 of the Universal Declaration of Human Rights (1948) , Article 17 of the International Covenant on Civil and Political Rights (1996) , Article 7 of the Charter of Fundamental Rights of the European Union (CFREU) (2009) , and Article 8 of the European Convention on Human Rights (ECHR) (1950) . Nationally, this right has been cited in the 1988 Brazil Constitution and United States case law (derived from the US Constitution). In India, the Supreme Court ruled unanimously in 2017 that the right to privacy for all people falls under Article 21, which provides the “protection of life and personal liberty” (McCarthy, 2017; Mahaprata & Choudhary, 2017) . However, many exceptions to privacy are also listed alongside the right to privacy in these supreme documents, despite the belief in its inviolability.

Article 8(2) of the ECHR provides that privacy interference can only occur in instances “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 or morals, or for the protection of the rights and freedoms of others.” Article 7 of the CRFEU can be breached by a search or arrest warrant issued by any EU state (European arrest warrant, n.d.; European evidence warrant, 2006) . In Article 5 Sections X-XII, the Brazilian Constitution outlines the right to privacy in areas related to private life, the home, and correspondence. These sections also clearly outline exceptions; Section XI recognizes that officials can enter a home “in cases of flagrante delicto, disaster or rescue, or, during the day, with a court order,” and Section XII allows criminal proceedings to methodically breach this privacy. In the United States, privacy zones – derived from the First, Third, Fourth, Fifth, and Ninth Amendments in Griswold v. Connecticut (1965) in conjunction with the Due Process Clause in the Fourteenth Amendment – have extended privacy to Americans in various ways (Privacy, n.d.). Again, a court-issued search or arrest warrant may breach this right to privacy, especially in the home.

Data Privacy

The US has very little data privacy due to a lack of legislation and regard. Most data regulation is due to compliance with the 2018 implementation of the EU’s General Data Protection Regulation, which applies to any company collecting any data on European citizens or companies with a large number of customers based in Europe (Wolford, n.d.). On the other hand, the Brazilian Supreme Court extended these Article 5 protections to data privacy in 2020 (Bioni & Monteiro, 2020) . Additionally, New Zealand’s Information Privacy Principles (IPP) in Article 22 of the Privacy Act 2020 protect data collection, but also provides some exceptions in IPP 11 and 12.

Relationships

In 2018, the Indian Supreme Court declared part of Section 377 unconstitutional against Articles 14, 15, 19, and 21 of the Constitution (Rai, 2018) . This ruling allowed those in LGBT relationships privacy in the home, but again, this privacy was not granted in public spaces (Rai, 2018) . Similarly, the right to a private relationship went through the courts in the United States. First, it was granted to interracial couples in 1967 through Loving v. Virginia (1967) and then to same-sex couples through Obergefell v. Hodges in 2015. In Brazil, relationships are protected under Article 5(X), which states “personal intimacy, private life, honor and reputation are inviolable, guaranteeing the right to compensation for pecuniary or moral damages resulting from the violation thereof” (Brazil Constitution, 1988) .

Communication

Private communication is protected under Article 5(XII) of the Brazilian Constitution (1988) . In the United States, the right to private communication became convoluted with the 2001 USA PATRIOT ACT, which authorized the interception and disclosure of communication under certain circumstances.

Resources

Bioni, B.R. & Monteiro, R.L. (2020, June 9). A landmark ruling in Brazil: Paving the way for considering data protections as an autonomous fundamental right. Future of Privacy Forum. https://fpf.org/blog/a-landmark-ruling-in-brazil-paving-the-way-for-considering-data-protection-as-an-autonomous-fundamental-right/ Brazil Constitution. (1988) . https://www.constituteproject.org/constitution/Brazil_2017. pdf?lang=en Charter of Fundamental Rights of the European Union. Dec. 1, 2009. https://fra.europa.eu/en/eu-charter Constitution of India. (1950) . https://legislative.gov.in/constitution-of-india European arrest warrant. (n.d.). European Commission. Retrieved Sept. 21, 2021, from https://ec.europa.eu/info/law/cross-border-cases/judicial-cooperation/types-judicial-cooperation/european-arrest-warrant_en European Convention on Human Rights. Council of Europe. Nov. 4, 1950. https://www.echr.coe.int/documents/convention_eng.pdf European evidence warrant. (2006, June 1). European Commission. Retrieved Sept. 21, 2021, from https://ec.europa.eu/commission/presscorner/detail/en/PRES_06_168