STANDARDS ON THE RESPECT FOR PRIVATE AND FAMILY LIFE
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The first pronouncement on the right to respect for privacy and family is set out in the Universal Declaration stipulating that ‘no-one shall be subjected to arbitrary interference with his privacy, family, home or correspondence’ and that ‘the family is the fundamental group unit of society entitled to protection by society and the state’. Today the right to respect for private and family life has come to encompass a wide range of areas. Privacy applies to a wide spectrum ranging from phone tapping to sexual orientation, while prominent issues regarding the right to respect for family include the rights of parents to contact with their children, remarriage and adoptions.
The right to respect for private and family life
The right to respect for privacy mirrors the liberal concept of the individual’s freedom as a self-governing being as long as his/her actions do not interfere with the rights and freedoms of others. The right to privacy is the right to individual autonomy that is violated when states interfere with, penalise, or prohibit actions that essentially only concern the individual, such as not wearing safety equipment at work or committing suicide. States justify such interferences with the social costs of the actions prohibited, for instance to the health care system. The right to privacy encompasses the right to protect a person’s intimacy, identity, name, gender, honour, dignity, appearance, feelings and sexual orientation. The right to privacy may be limited in the interests of others, under specific conditions, provided that the interference is not arbitrary or unlawful. People cannot be forced to change their appearance or name, for instance, nor can they be prohibited from changing their name or sex; however, in the interests of the rights of others they may, for example, be compelled to give biological samples for the determination of paternity. Another exception could be lawful counter-terrorism surveillance that necessarily operates in breach of privacy rights. Such a breach is acceptable as long as it accords with judicial and parliamentary oversight. The right to privacy extends to the home, the family and correspondence. The term family relates, for example, to blood ties, economic ties, marriage and adoption. The right to the respect for privacy of the home has been interpreted to include place of business. A common interference with the privacy of correspondence has to do with secret surveillance and censorship of the correspondence of prisoners.
Finally, with the propagation of computer technology and automated data processing, states are obliged to ensure effective data protection as public authorities and commercial organisations are in a position to exploit personal data threatening the privacy of individuals.
STANDARDS
Article 12 UDHR and Article 17 ICCPR stipulate that ‘no one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation’ and that ‘everyone has the right to protection of the law against such interference or attacks.’ Very similar wording is used in Article 14 CMW protecting migrant workers and their families from arbitrary interference with their family life and privacy. Article 16 CRC and Article 22 CRPD also specifically guarantee privacy rights for children and disabled persons.
Article 8 ECHR sets out the right to respect for private and family life, home and correspondence, as well as a number of possible limitations. Authorities may not interfere with this right except as is ‘in accordance with law and is necessary in the interests of a democratic society, in the interests 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 and morals, or for the protection of the rights and freedoms of others.’
Article 11 ACHR sets out the right to privacy, honour and dignity, and prohibits arbitrary interference with the right to privacy and stipulates that everyone has the right to protection of the law against attacks or interferences with the right.
The ACHPR does not explicitly set out the right to privacy, but Article 18 attaches particular importance to the state’s duty to protect the family.
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