The Right to Privacy and Reputation

The Right to Privacy and Reputation

HRA s.12 – Privacy and reputation

Everyone has the right—

(a) Not to have his or her privacy, family, home or correspondence interfered with unlawfully or arbitrarily; and

(b) Not to have his or her reputation unlawfully attacked.

The right to privacy and reputation under s.12 of the ACT Human Rights Act 2004 (“HRA”) derives from Article 17 of the International Covenant on Civil and Political Rights (ICCPR). Privacy is necessarily a relative concept, as everyone lives in a society.[1] The right to privacy protects against unwarranted societal intrusion.

Scope of the right

The European Court of Human Rights has said of the related concept of “private life” in the European Convention on Human Rights,[2] that it is “a broad term not susceptible to exhaustive definition.”[3] It “includes a person’s physical and psychological integrity: the guarantee afforded by Article 8 of the [European Convention on Human Rights] is primarily intended to ensure the development, without outside interference, of the personality of each individual in his relations with other human beings”.[4]

The right to privacy includes the right to choose and change your name[5] and the right to choose the way you look and manner of dress. It has given protection against

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construction on an ancestral burial ground.[6] It also expressly protects a person’s reputation.

The right to privacy includes sexual rights – for instance, the right to choose a sexual identity and orientation and to engage in consensual activities in the privacy of one’s home.[7] The first successful “communication” or complaint by an Australian to the Human Rights Committee (HRC) concerned the now repealed prohibition on gay sex in Tasmania. The HRC found a violation of Article 17 of the Covenant.[8]

The corresponding right to ‘private and family life’ under Article 8 of the European Convention on Human Rights (ECHR) has proved an extremely broad and versatile human rights provision. It covers a ‘right to establish relationships with other human beings.’[9] For example, it includes a family’s right to live together.[10] The European Court of Human Rights found a violation in a case where two children were removed from their parents on grounds that the latter had an intellectual disability and were placed in separate foster families with little contact with their parents, despite there being no signs of ill-treatment.[11]

The HRC’s jurisprudence as it relates to Australia and the right to privacy often concerns immigration matters. In particular, the HRC has made three important finding concerning a family’s right to live together in Australia in the context of immigration proceedings: Winata v. Australia;[12] Bakhtiyari v Australia;[13] and Madafferi v Australia.[14] In all three cases, the Committee found that to remove one or more family members from Australia would constitute an arbitrary interference with the family, and that Articles 17, 23 (the right to found a family) and 24 (protection of children) of the ICCPR had been violated. The impact upon children appears to have been very important in all these cases.[15] In the Bakhtiyari case, there were additional factors, such as the effect of the prolonged immigration detention on members of the family and the difficulties that Mrs Bakhtiyari would face on her own if removed from Australia.[16] In Madafferi, the mental health of the father who was to be deported was of concern to the Committee.[17] These factors explain the marked difference in result as compared with previous cases involving individual communications from other countries.[18]

Arbitrary or unlawful interference and proportionate limitations

The terms unlawful and arbitrary, used throughout the HR Act, mean that interference can only be on the basis of law that is precise and circumscribed, and that does not give too much discretion to authorities to authorize interference. “[E]ven interference provided for by law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances.”[19]

Article 17 of the ICCPR is not a right that includes a specific clause concerning limitations. However, all rights within the HR Act are subject to the limitations clause in s. 28 of the Act. According to s. 28, the right to privacy can only be limited by what is reasonable in a democratic society, taking into account the rights and freedoms of others, such as, for instance, the right to free expression under s.16.

Duty to legislate and to take positive measures

The HRC states that the right to privacy imposes some positive obligations on the state:

[Article 17 rights are] required to be guaranteed against all interferences and attacks whether they emanate from State authorities or from natural or legal persons …

States are under an obligation to provide adequate legislation to that end. Provision must also be made for everyone effectively to be able to protect himself against any unlawful attacks that do occur and to have an effective remedy against those responsible.[20]

These positive obligations emanate in part from Article 17(2) of the ICCPR which expressly provides that: ‘Everyone has the right to the protection of the law against … interference or attacks’ on privacy or reputation. Section 12 of the HRA does not contain this provision. It remains to be seen whether this will be implied into s.12 as part of the protection from arbitrary interference. However, it should be borne in mind that under Article 2 of the ICCPR, all rights must be “respected and ensured” and that all rights may be thought of as carrying a tripartite level of obligation. Rights must be “respected” by the State itself. They must also be “protected”, meaning that the state has to put in place legislation and administrative machinery to protect individuals from rights violations including those emanating from private actors, lest the State become responsible for a human rights violation by virtue of a failure to prevent or punish private harms. Finally, rights must be “fulfilled”, meaning they must be promoted (for example, through education) and even provided to people, as in the case of food for those suffering the effects of famine or other natural disaster. This approach, seen for example in many of the general comments and recommendations of the bodies responsible for supervising human rights treaties, should also be adopted in the interpretation of the rights within the Human Rights Act.

In the context of the European Convention on Human Rights, the duty on States to provide an adequate legislative framework has been very important. For example, the European Court of Human Rights found a violation of the right to privacy when a procedural defect in the law prevented the initiation of criminal proceedings in relation to the sexual abuse of a young woman with a disability.[21] The Court stated that “[e]ffective deterrence is indispensable in this area and it can be achieved only by criminal-law provisions; indeed, it is by such provisions that the matter is normally regulated.”[22]

Similarly, the duty to take positive measures has been crucial to the effectiveness of Article 8 of the ECHR. It has been used to establish a `custodial' and `protective' jurisdiction for vulnerable adults that is “effectively indistinguishable from parens patriae or wardship jurisdictions in relation to children.”[23] It may, in exceptional circumstances, require governments to take positive measures to ensure that persons with a disability have access to public places and can develop relations with other people and the outside world.[24]

Environmental pollution

In the European jurisprudence, the right to privacy has extended to many different substantive areas.[25] For example, it has been accepted that the right to privacy extends to the right not to have highly polluting facilities built close to residences, as well as the right to enjoy a home peacefully, without intrusive noise or other pollution.[26] Noise volumes exceeding permitted levels and at night for several years were found to breach the right to privacy under the ECHR.[27] However, in a House of Lords’ case involving the failure by public authorities to prevent flooding by a back-flow of foul water from a sewerage system, the claim did not succeed. A statutory scheme had been established whereby the public authority responsible for sewerage services had to provide adequate drainage. The public authority could take into account available resources in the face of the absolute right of householders to connect to the water and sewerage service and an independent regulator had been given the power to enforce this obligation. Convention rights could not be used to side-step the statutory regime.[28]

Information

The right to privacy protects personal information that might be gathered by authorities, for example, on a database. As the HRC’s General Comment states:

[t]he gathering and holding of personal information on computers, data banks and other devices, whether by public authorities or private individuals or bodies, must be regulated by law. Effective measures have to be taken by States to ensure that information concerning a person’s private life does not reach the hands of persons who are not authorized by law to receive, process and use it, and is never used for purposes incompatible with the Covenant. [29]

The right to information privacy covers the right to protect information such as official records, photographs, letters, diaries and electoral information,[30] as well correspondence.[31] The European Court of Human Rights has recognised health as an area that is particularly privacy sensitive.[32] Under ACT and Federal legislation, health information requires a higher degree of information privacy than general records.[33] There is also a right to access personal information held by a public authority, and to request that incorrect information be corrected or eliminated.[34] Furthermore, there may be a duty of disclosure of certain non-personal information – for example, the public has a right to know about dangers posed by environmental risks or other activities.[35]

Housing

Section 12 protects against arbitrary interference with one’s home. A home is any place in which a person resides or, according to the HRC, a place where a person “carries out his usual occupation.”[36] As Conte states, this interpretation may not fit the literal definition of a home but is consistent with a purposive interpretation of Article 17 of the ICCPR, given the “objective of protecting the places in which a person is habitually present.”[37] In the United Kingdom, courts have said that care homes or other institutions for disabled or elderly people may be considered the person’s home.[38]

Section 12 gives some protection of one’s existing home, but not a right to be provided with a home, nor necessarily with housing of a particular kind.[39] However, obligations may arise with respect to certain vulnerable groups, particularly if eviction is contemplated. There have been successful challenges to laws preventing gypsies and travellers on local authority sites from enjoying the same security of tenure as mobile homes residents.[40] Eviction decisions must take into account the impact on the individual's health, the need for a stable education for any children, and their ability to maintain their traditional way of life.[41] The availability of a suitable alternative site is a key factor.

Detention

Although imprisonment or other forms of detention may validly restrict the right to privacy, section 12 HRA still affords protection to persons in detention. For example, children in detention have benefited from the protection afforded by the right to privacy.[42] Adults have also benefited. For example, the House of Lords has held that although searching prison cells is a legitimate action to maintain prison security, a blanket policy of excluding prisoners from their cells when searching through their legally privileged correspondence breaches the right to privacy.[43] In the case of a mental health patient subjected to compulsory isolation in a hospital, the House of Lords noted that the right to privacy may be engaged: it is “quite plain that, improperly used or continued, seclusion can violate a patient’s Convention rights.....” [44]

The law in this fact sheet is correct as of June 2006. If you have any comments concerning this fact sheet, please contact us: email ; phone (02) 62052222.

What are the rights protected in the Human Rights Act 2004?

Section 8 Recognition and equality before the law
Section 9 Right to life
Section 10(1) Prohibition against torture and cruel, inhuman or degrading treatment
Section 10(2) Right to consent to medical treatment
Section 11 Protection of the family and children
Section 12 Protection of privacy and reputation
Section 13 Freedom of movement
Section 14 Freedom of thought, conscience, religion and belief
Section 15 Freedom of peaceful assembly and association
Section 16 Freedom of expression
Section 17 Right to participate in public life
Section 18 Right to liberty and security of the person
Section 19 Right to humane treatment when deprived of liberty
Section 20 Rights of children in the criminal process
Section 21 Right to a fair trial
Section 22 Rights in criminal proceedings
Section 23 Right to compensation for wrongful conviction
Section 24 Protection against double jeopardy
Section 25 Protection against retrospective criminal laws
Section 26 Freedom from forced work
Section 27 Rights of minorities

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