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“All Citizens are Equal before Law and are Entitled to Equal Protection of Law”-Article 27 of the Constitution of the People’s Republic of Bangladesh

Issue No: 142
October 31, 2009

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Right to privacy: How far protected?

S. M. Masum Billah

PRIVACY underpins human dignity and other key values such as freedom of association, freedom of speech, freedom of thought and conscience. Some times this right is termed as 'right to be let alone'. Unfortunately, with the advancement of technology, for example, computer, internet, mobile, MP3, MP4, surveillance system and other wide variety of technological devices, the possibility of intrusion of privacy has tremendously increased.

Origin of right to privacy
Right to privacy as a legal notion had its origin in contemporary times. For its invention, credit goes to Samuel Warren and Louis Brandeis, two young Boston lawyers who wrote a Law Review Article published in December of 1890. They explained the philosophical linkage of privacy right to Natural Law. In simplest terms, for Warren and Brandeis, the right to privacy was the right of each individual to protect his or her psychological integrity by exercising control over information, which both reflected and affected that individual's personality.

The Indian case
Through pragmatic interpretation of the constitutional provisions the Supreme Court of India have established the right to privacy under Indian constitutional law. The most frequently referred case in this regard is People's Union for Civil Liberties (PUCL) vs. Union of India and Others. The fact of the case reveals that following a report on "Tapping of politicians' phones" by the Central Bureau of Investigation (CBI), a Public Interest Litigation was filed by the People's Union of Civil Liberties (PUCL), a voluntary organization of India, highlighting the incidents of telephone tapping in the recent past times. The petitioner also challenged the constitutional validity of Section 5(2) of the Indian Telegraph Act, 1885, in the alternative it was contended that the said provisions be suitably read-down to include procedural safeguards to rule out arbitrariness and to prevent the indiscriminate telephone-tapping. Relying on the judgment of the Indian Supreme Court in Kharak Singh Case, the court held that telephone tapping is a serious invasion of right to privacy. Speaking for the court Justice Kuldip Singh, J. inter alia observed, “Telephone tapping is a serious invasion of an individual's privacy. With the growth of highly sophisticated communication technology, the right to sold telephone conversation, in the privacy of one's home or office without interference, is increasingly susceptible to abuse...citizen's right to privacy has to be protected from being abused by she authorities of the day.”

Bangladesh situation
Right to privacy is still in a nascent stage in Bangladesh. It is still swimming in a grey area of constitutional protection. The constitution in several places, though not in unequivocal terms and not covering all aspects of privacy, has addressed the issue. 'Worth of human dignity' in Article 11 and privacy of home and correspondence' in Article 43 are two examples as such. However, there is no reason why the Bangladesh experience will be different from the Indian Supreme Court interpretation given in Telephone Tapping Case. True, the issue of privacy has not come before the Bangladesh apex court in a serious manner until recent time. Bangladesh Parliament had passed 'The Information & Communication Technology Act 2006' aimed at enhancing the use of ICT in all spheres of activity. The objective of the law is to augment suitable use of information technology in overall social system, including administration, business and financial transactions, apart from science and research. The Act also touches the issue of privacy in section 78 and 79, which are a corresponding to section 72 of Indian Information Technology Act, 2000. This is a good provision in protection of privacy rights in the context of Bangladesh. But the advancement of technology has belied the promise of the provisions.

Right to privacy and technology
Advancement of technology with all its blessings is carrying some necessary evils with it. As regards the friendly computers, our very own PCs can infringe our privacy by sending out a lot of information about us to third parties. A software program by the name of Spybotgen downloaded on a computer's hard drive has the power to read MS Word documents and send contents back to its originator, or to an accomplice.

Thus, we see that the more technically equipped we become, the easier it has become to peep into the bedroom of others. Though an individual has protection from state intervention but what protection can an individual claim against a person who is infringing one's right to privacy sitting miles away, probably in some other country?

So long as the criminals and terrorists seek to misuse technology to perpetrate their evil motives, governments the world over will continue to use technology to invade our private spaces. This brings us to the question; does it take a thief to catch a thief?

As digital photo components have dropped in price and their size has shrunk, the privacy implications of cameras on phones have raised concerns beyond the fears of stalked celebrities and cheating spouses. Even the makers of camera phones do not seem keen on the technology when it is turned on them. Samsung Corporation and LG Electronics Inc, the South Korean handset makers, caused a chuckle in the industry when they banned the use of their own phones (with camera) in their own facilities years back.

Pervasive societal use of video surveillance technologies has virtually eliminated any expectation of privacy in public locations, while video surveillance systems in private spaces continue to encroach upon privacy rights. Like video surveillance systems, wearable computers represent a new threat to privacy rights because these powerful new tools can constantly record and store everything about a user's environment through sensors. Although wearable computers are a relatively new technology, the wearable computer will become a pervasive tool used by almost all computer users in the near future.

Way to privacy protection
There are four major models for privacy protection. Depending on their application, these models can be complimentary or even contradictory. In most countries several are used simultaneously. Countries that protect privacy most effectively, uses all models together to ensure privacy protection.

a. Comprehensive laws: In many countries around the world, there is a general law that governs the collection, use and dissemination of personal information by both the public and private sectors.

b. Sectoral Laws: Some countries, like the United States, have avoided enacting general data protection rules in favor of specific sectoral laws governing, for example, video rental records and financial privacy. In such cases, enforcement is achieved through a range of mechanisms. In many countries, sectoral laws are used to complement comprehensive legislation by providing more detailed protections for certain categories of information.

c. Self-Regulation: Data protection can also be achieved through various forms of self-regulation, in which companies and industry bodies establish codes of practice and engage in self-policing. This is currently the policy promoted by the governments of the United States, Japan, and Singapore.

d. Technological Device: With the recent development of commercially available technology-based systems, privacy protection has also moved into the hands of individual users. Users of the Internet and of some physical applications can employ a range of programs and systems that provide varying degrees of privacy and security of communications. These include encryption, anonymous e-mailers, proxy servers, digital cash and smart cards. Questions remain about security and trustworthiness of these systems.

There are no generally applicable norms specifying standards for determination of privacy infringement that will be found globally acceptable. This is a reality that must be faced by the people at large. It ought to be the role of state and other actors to ensure the protection of privacy and set relevant standards in a manner appropriate to the peculiar needs of its citizens.

The writer is Assistant Professor, Department of Law, Jagannath University, Dhaka.


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