Privacy and the attempt to shield the private sphere from human rights protection
The concept of privacy has another side. Privacy has been used to shield violence against women from interference by law enforcement officials. Privacy has also been invoked as a justification for racial discrimination when hiring domestic staff or excluding people from membership of clubs and associations.The concept of a private sphere free from governmental interference has meant that issues of marital rape, child abuse, and female genital mutilation were not seen as part of the human rights debate, and that dealing with these issues meant invading someone's privacy.
These problems have been compounded by the notion of a public/private divide in law. Many legal systems have evolved around the idea that public law (including human rights
protection) should regulate issues concerning governmental authorities, whilst private law regulates disputes between private entities that are not connected to the state or local authorities.
By implication, it is sometimes said that private matters are not the business of the public authorities. According to this line of argument, concerns relating to human dignity in this private sphere cannot, therefore, be remedied through state intervention or recourse to human rights law. Furthermore, to compound this exclusionary policy, international human rights law has been developed through the consideration of states' obligations under the various treaties. Because courts and committees can usually only hear complaints against governments, an assumption has arisen that all violations of human rights require the involvement of the government. Violations in the private sphere were simply not considered to be covered by international human rights law.
This has changed. First, the international bodies established under the human rights treaties have interpreted governments' obligations as giving rise to duties to protect individuals even from attacks on their rights by private individuals and other non-state entities. These obligations are often known as positive obligations, or obligations to protect. Second, the development of the law of international crimes has highlighted questions of individual responsibility for violations of international law. The fact is that some of the worst atrocities the international community has to deal with taking place without any question of governmental involvement. Obvious examples include the rapes, torture, and civilian massacres carried out by rebel groups. There is now a good argument that such non-state actors have certain human rights obligations. In turn, the scope of human rights obligations is coming to be seen as having an impact on other non-state actors, such as the United Nations and NATO (in the context of their peace operations), international financial institutions (such as the World Bank and the International Monetary Fund), multinational corporations and other forms of businesses, and all sorts of political parties, religious groups, unions, clubs, and associations.
The traditional distinction between public and private, and the consequent exclusion of domestic and family matters from the public sphere has led to a careful feminist critique of the construction of the public/private divide and its implications for women and women's rights. It has sometimes been suggested that abolishing the notion of a public/private divide is essential to ensure that oppression in the private sphere would be tackled as a matter of public political concern. In particular, it is clear that the human rights discourse traditionally focused on a public sphere and 'forgot' the concerns of women in fields such as armed conflict, development, the workplace, and the family. The solution, however, is not to abolish the right to privacy: privacy claims have proven effective to ensure a degree of control over one's body, one's sexual relations and over personal information. The way forward is to take women's claims seriously and acknowledge that human rights apply in the private sphere.
Balancing privacy and other values
Balancing the right to privacy with the competing right to freedom of expression is certainly contextual, one might even say cultural. Although the stakes may seem small to some, the example of a newspaper claiming freedom to publish photographs of a famous person with her children helps us to understand the issues. Human rights simultaneously claim to protect freedom of expression and the right to privacy. How to choose? Here we have to admit that the human rights framework is not akin to a set of traffic regulations or simple road rules. There is plenty of room for different people, different judges even, to come to different conclusions, and again everything depends on context. But the disputes are now often argued in terms of weighing different values - and the lexicon of human rights concepts is the vocabulary called upon to articulate the principles at stake. In a case concerning the publication of photographs of Princess Caroline of Monaco, the judges of the German Federal Constitutional Court were unsympathetic to the claims for breach of privacy - favouring instead the interests protected by press freedom. They saw the need to allow such publication as part of ensuring access to information for all. On the other hand, the judges of the European Court of Human Rights favoured the protection of the Princess's privacy.
The expansion of the concept of privacy to protect one from pollution, including noise pollution, illustrates the point that privacy is not considered an absolute right and that decision makers have a complex task in determining whether an interference with the enjoyment of this right is justified. In 2001, residents near Heathrow Airport succeeded in convincing a Chamber of the European Court of Human Rights (by five votes to two) that the noise levels at night were an unjustifiable interference with their effective enjoyment of their right to respect for their homes and their private and family lives. On appeal, the Grand Chamber held by twelve votes to five that the Government had struck the correct balance between the rights of the residents and the rights of others to travel and pursue competitive commercial operations (in turn considered necessary for the 'economic well-being' of the country). The dissenters disagreed and felt the balance had not been properly struck. As they put it: the close connection between human rights protection and the urgent need for a decontamination of the environment leads us to perceive health as the most basic human need and as pre-eminent.
After all, as in this case, what do human rights pertaining to the privacy of the home mean if, day and night, constantly or intermittently, it reverberates with the roar of aircraft engines?
Protecting health as an element of privacy provides one clear dilemma when it is perceived as hindering the convenience of airline travellers and the economy.
With regards to the increasing use of closed-circuit surveillance cameras, DNA, and other genetic information, the same questions we discussed earlier must be asked. Is there a legitimate aim? Are the interferences authorized by an accessible law, and are they really necessary in a democratic society to protect the community from crime and threats to national security? There are fears that such data will be used by employers and insurance companies to detect those likely to have future health problems, thus introducing an unacceptable level of discrimination based on predicted future misfortune.
The priority given to privacy depends on the context and, to some extent, the weight that a particular society or decision-making body wishes to accord such a claim. It is perhaps helpful to recall a primary purpose of protecting privacy, which is to allow for the development of the personality in relation to others without unnecessary interference. Where the protection of privacy is being invoked to shield public officials from criticism, to seal off violence in the domestic arena from official protection, or to justify racially or other types of prohibited discrimination, then we should be alert to the appropriation of the concept of privacy to assist in the denial of human rights. The right to privacy has forged important advances in the international protection of human rights – but it simultaneously remains a tool that can easily be invoked to undermine other rights. Claims that privacy is under threat are set to continue for some time; how much weight they are accorded will depend on what is considered to be at stake.
Decision of the Federal Constitutional Court of 15 December 1999, at para 60
The fact that the press has to fulfil an opinion-forming mission does not exclude entertainment from the constitutional free press guarantee. The formation of opinions does not stand in opposition to entertainment. Entertaining articles can also contribute to the formation of opinions. Such articles can, under certain circumstances, stimulate or influence the formation of opinions in a more sustainable way than information that is exclusively fact-related. Moreover, in the media, an increasing tendency toward the elimination of the distinction between information and entertainment can be observed both with respect to specific organs of the press as a whole as well as with regard to individual articles, i.e., to disseminate information in an entertaining manner or to mix information and entertainment ('infotainment'). This means that many readers obtain the information that they regard as important or interesting exactly from entertaining articles.
Von Hannover v Germany, Judgment of the European Court of Human Rights (2004), at paras 76-77
76. As the Court has stated above, it considers that the decisive factor in balancing the protection of private life against freedom of expression should lie in the contribution that the published photos and articles make to a debate of general interest. It is clear in the instant case that they made no such contribution since the applicant exercises no official function and the photos and articles related exclusively to details of her private life.
77- Furthermore, the Court considers that the public does not have a legitimate interest in knowing where the applicant is and how she behaves generally in her private life even if she appears in places that cannot always be described as secluded and despite the fact that she is well known to the public.
Even if such a public interest exists, as does a commercial interest of the magazines in publishing these photos and these articles, in the instant case those interests must, in the Court's view, yield to the applicant's right to the effective protection of her private life.