Debating the idea of privacy

A nine-judge bench of the Supreme Court is dealing with the issue of right to privacy

GN Bureau | July 19, 2017


#the US   #Australia   #Harvard Law Review   #Supreme Court   #Right to privacy   #European Union   #personal data  


Is right to privacy a fundamental right? The Supreme Court on Wednesday heard arguments on the contentious issue linked to the Aadhaar debate. Here's how the issue has been addressed by different countries, with the first reference dating to 1890.

 
The Supreme Court on Tuesday said that the nine-judge bench would deal with the issue of right to privacy. The matter challenging the Aadhaar scheme would then be referred back to a smaller bench, the court said, reported India Today 
 
Even as arguments take place in the Supreme Court now, it is worthwhile to mention that the right to privacy issue was first taken up way back in 1890 in the US.
 
An article on the right to privacy in Harvard Law Review on December 15, 1890 said: “That the individual shall have full protection in person and in property is a principle as old as the common law; but it has been found necessary from time to time to define anew the exact nature and extent of such protection. Political, social and economic changes entail the recognition of new rights, and the common law, in its eternal youth, grows to meet the demands of the society.”
 
Recent  inventions and business methods call attention to the next step which must be taken for the protection of the person, and for securing to the individual … the right “to be let alone”, said Harvard Law Review 
 
In 1948, the UN declaration of human rights referred to the right to privacy.
 
“No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks,” said Article 12 of the UN declaration of human rights 
 
As part of the right to privacy issue, the European Union carried out a comprehensive reform of data protection rules in 2012.
 
On May 4 2016, the official texts of the Regulation and the Directive was published in the EU Official Journal in all the official languages. While the regulation entered into force on May 24, 2016, it shall apply from 25 May, 2018. The directive enters into force on May 5, 2016 and EU Member States have to transpose it into their national law by May 6, 2018.
 
“The objective of this new set of rules is to give citizens back control over of their personal data, and to simplify the regulatory environment for business. The data protection reform is a key enabler of the Digital Single Market which the Commission has prioritised. The reform will allow European citizens and businesses to fully benefit from the digital economy,” said the European Commission 
 
As far as European Union is concerned, “the protection of natural persons in relation to the processing of personal data is a fundamental right. Article 8(1) of the Charter of Fundamental Rights of the European Union  and Article 16(1) of the Treaty on the Functioning of the European Union (TFEU) provide that everyone has the right to the protection of personal data concerning him or her”.
 
“The processing of personal data should be designed to serve mankind. The right to the protection of personal data is not an absolute right; it must be considered in relation to its function in society and be balanced against other fundamental rights, in accordance with the principle of proportionality,” it said 
 
In the US where the issue of right to privacy was first addressed, Neil M Richards, professor of law, Washington University School of Law wrote: “The conception of tort privacy developed by Warren, Brandeis, and Prosser sits at the heart of American understandings of privacy law. Rooted in protection of private information against unwanted collection, use, and disclosure, tort privacy protects against emotional injury and was directed by design against disclosures of true, embarrassing facts by the media.”
 
In Australia, the privacy bill was passed in 1988.
 
“During the passage through parliament of the privacy bill 1988, the Senate proposed an amendment to the Bill to provide for an action for breach of privacy. The proposed amendment provided that ‘interference with the privacy of an individual taking place after the commencement of this Act shall give rise to an action at the suit of the individual for breach of privacy’,” said the Australian Law Reform Commission.
 
 

 

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