Just a week ago, I was invited as one of the speakers at a regional workshop organised by Human Rights First Rwanda Association under the theme, “Access to Information and Freedom of Expression”.
But one question came up which I want to dwell in this column: ‘where does the right to privacy begin and end’.
This question comes over and over again. In fact, as a facilitator in several media seminars, especially on the media law, I have been asked a zillion times the question of ‘where the right of privacy begins and where it ends vis-à-vis freedom of expression’.
As a result, I was provoked to shed more light on privacy. However, I must confess that my elucidation may not meet the satisfaction of anyone that reads this piece. The right to privacy is a complex issue in the media industry.
The problem lies particularly on the confines of one’s private life. One could say private spheres, include one’s name, photograph, personal data, but the list is non-exhaustive. Privacy is not the same as academic disciplines such as medicine, chemistry or administration.
It can, however, be noted that freedom of expression and privacy are two distinct rights, and neither of which is absolute. They’re both contained in multiple international and regional human rights instruments.
And neither right supersedes the other—both are at par. Despite the widespread recognition of the obligation to protect privacy, the specific content of this right was not fully developed by international human rights protection mechanisms at the time of its inclusion [privacy] in the relevant human rights instruments.
The lack of explicit articulation of the content of this right has contributed to difficulties in its application and enforcement.The interpretation of the right to privacy raises challenges with respect to what constitutes the private sphere and in establishing notions of what constitutes public interest.
In spite of that, Frank La Rue, a former UN Special Rapporteur on the promotion of the right to freedom of expression, defined privacy as “the presumption that individuals should have an area of autonomous development, interaction and liberty, a “private sphere” with or without interaction with others, free from State intervention and from excessive unsolicited intervention by other uninvited individuals”.
Despite lack of specific content on the right to privacy, it is now recognised in nearly all states. Nonetheless, a question emerges: do public figures, such as celebrities, sportspersons, high profile businessmen, politicians etc., have a right to privacy?
There’s a presupposition that when a person becomes a public figure, they lose their privacy. To begin with, the right to privacy is fundamental to every human being.
As far as I know, there’s no international norm that deprives a person of their privacy because of becoming a public figure. The media tends to associate a public figure with public interest. Media practitioners need to assess and balance this carefully.
Not all words spoken or written by a public figure fall in the ambit of public interest. The golden rule of the right to privacy is consent. If a public figure consents, explicitly or implicitly, to expose their rights to privacy, and the media covers such a story that public figure can’t turn around to claim against intrusion of their privacy.
Furthermore, if a public figure does something in a public place, they can’t expect to enjoy privacy. What is said or done in a public place obviously becomes public.
But if one is in a private place, or is engaging in private communications (i.e. email, phone calls, Skype) then to break in to that space (whether physical or cyber) is a violation of your rights.
Similarly, if a person is party to a conversation where there is a legally binding expectation of privacy, then to publish or leak that communication is a rights violation. The media is strictly prohibited from obtaining information through illegal ways; for example, the Rupert Murdoch’s News International was banned in the UK due to a phone-hacking scandal.
A problem arises where the media practitioners feel that so long as a person is a public figure is not entitled to privacy. Universally, the right to privacy is recognised as one of the permissible restrictions in regard to freedom of the media. This is where media persons at times miss the point.
However, as noted elsewhere, the right to privacy, like freedom of expression, is never absolute. In case of violation of law, for example, the right to privacy doesn’t subsist. Obviously, a violation of law is tantamount to jeopardising public interests.
More to the point, for instance in Rwanda, a law regulating the interception of communication permits disregarding private communication if national security matters are at stake. In such a case, a waiver of privacy is a quintessence of public interest.
Notwithstanding the foregoing, privacy remains free from ‘exploitation of one’s personality, the publicising of one’s private affairs with which the public has no legitimate concern, or the wrongful intrusion into one’s private activities, in such manner as to outrage or cause mental suffering, shame, or humiliation to a person of ordinary sensibility’.
The writer is an international expert