Right to privacy has recently emerged as a subject of frequent debates worldwide. This right restrains the actions of both Government and private party that infringe or threaten to infringe the privacy of an individual. Now it is established as a human right based on the theory of natural rights and the history behind it is really interesting.

In 1890, Harvard Law Review published a famous article titled ‘Right to Privacy’ introducing the right for the first time as the ‘right to be left alone’. The article turned out to be so influential that Roscoe Pound, ex-dean of Harvard Law School, thanked its authors for adding a new chapter to the American law . Till today, Attorney Samuel D. Warren and Justice Louis Brandeis, authors of the article, are remembered as the founders of American privacy law.

After this brilliant introduction, the right slipped into the international human rights instruments rather smoothly. It found its place in the Universal Declaration of Human Rights (UDHR) in 1948, in the European Convention on Human Rights (ECHR) in 1950, and in the International Covenant on Civil and Political Rights (ICCPR) in 1966.

Though few state constitutions around the world protected some aspects of privacy such as the inviolability of the home and of correspondence, none of them had recognized the right to privacy in whole. Human rights are not introduced at the international level without strong advocacy from state parties but the case was different for the right to privacy. It appeared as a new human right before any State recommended the inclusion of it in international conventions.

In July 7, 2014, Oliver Diggelmann and Maria Nicole Cleis wrote an article titled “How the Right to Privacy Became a Human Right.” They focused on the exceptional evolution of the right to privacy by critically examining the drafting processes of Article 12 of UDHR, Article 8 of ECHR and Article 17 of ICCPR which incorporate the right to privacy. The authors raised two distinct questions: 1) why was ‘privacy’ given such full proof protection in these international documents? And 2) what was the actual concept of privacy upon which the codification of right to privacy was developed?

To find the answers, the authors elaborately explained the history of the codification of the aforementioned Articles. The result of their research was quite surprising. They successfully established that the concept of right to privacy was introduced in all three of these documents without detailed discussions.

Even though the use of the umbrella term ‘privacy’ instead of other more specific connotations such as ‘private life’ or ‘privacy of home’ changes the entire meaning, such changes were made during drafting as if they were some mere editorial details. Not even a general discussion took place upon the inclusion of the right in the key international human rights instruments despite its complete absence from the constitutions all over the world. The drafting history shows how coincidentally the right to privacy came into being and fails to answer why a complete guarantee of protecting the privacy of one’s life was created in the first place.

The concept of ‘privacy’ upon which the right was developed remains unclear as well. The authors detected two competing concepts in their research. While one concept introduces privacy as freedom from society, the other represents privacy as dignity. The authors mentioned that two partial guarantees were proposed in almost all drafting proposals: right to protection of home, and right to protection of one’s correspondence. Both of these guarantees include the ideas of freedom from society and dignity in intertwined ways. Therefore, the conclusion was that, the concept of privacy has more than one core ideas involved in it.

Right to privacy surely plays the role of protector of our interests. It might be troubling to think that the drafters of these international documents did not imagine the consequences of their creation of this right but it brought only blessings for us. Due to their unexplained inclusion of the umbrella notion, ‘privacy’ can now be described in diverse ways. The birth of right to privacy, though silent, empowered us to control our personal information and opened up a new horizon for development of human rights.

Preeti thanks Khaled Saifullah, Farah Diba and Tanzina Islam for their comments and suggestions on an earlier draft of this article.

Citations:

Preeti Kona, “Right to Privacy: The Unpredicted Birth of a Human Right”  (DHLR Blog, 2 September 2014) http://www.dhakalawreview.org/blog/2014/09/right-to-privacy-the-unpredicted-birth-of-a-human-right-288