The right to privacy
The right to privacy is enshrined in Article 12 of The Universal Declaration of Human Rights (1948):
No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to protection of the law against such interferences or attacks.
The right to privacy has not been clearly defined. It can be divided into separate, but related, concepts, most commonly:
- bodily privacy: restriction of invasive physical activity, such as DNA collection and strip searches;
- communications privacy: restriction of interference with mail, telephone and electronic communications;
- territorial or spatial privacy: restrictions on unwarranted intrusion into the home, workplace and streets through, for example, surveillance and the use of geolocational technologies; the concept can extend to privacy of personal objects located in private space such as personal writing, souvenirs and mementos;
- information privacy: regulation of the collection and handling of an individual’s personal information; this is also called ‘data protection’.
Recently, with the advent of Artificial Intelligence, computer algorithms and machine learning, privacy advocates and commentators have started to conceptualise additional dimensions of privacy:
- behavioural privacy: typified by the privacy interests a person has while conducting publicly visible activities; it relates to the desire to remain anonymous and not have behaviour or movements tracked and monitored in public spaces;
- proprietary privacy: privacy over personal physical objects, such as the way people password protect mobile phones, to prevent others from accessing their phone;
- associational privacy: freedom to choose with whom you interact (i.e. friends, associations, groups and communities) without being monitored;
- decisional privacy: freedom from unwanted interference with, and manipulation of, opinions, beliefs, decisions and actions (e.g. this may relate to freedom from interference with a person’s ways of acting, behaving and living, and their general goals and projects);
- intellectual privacy: privacy over individual thoughts and feelings, and privacy to develop opinions and beliefs through what we read, watch, listen to, record and write.
For discussion of the meaning of the right to privacy, see ‘Chapter 1: Introduction to the inquiry – the meaning of privacy’, in the Australian Law Reform Commission’s report, For your information: Australian privacy law and practice (ALRC report 108).
The four different concepts outlined above can overlap. For example, the physical collection of DNA relates to bodily privacy, but the information extracted from the sample relates to information privacy. Similarly, interference with information recorded as a result of telephone interception relates to communications privacy, while the personal information about an individual recorded as a result of this interception relates to information privacy.
Privacy is not the same as a duty of confidence, although it is a related concept and has been invoked to redress what is essentially a breach of privacy. The recipient of confidential information generally owes an obligation of confidence to the provider of the information regardless of whether the information is personal information about the provider. Privacy is the right of the subject of the information, no matter who provides or receives it.
For more information about the duty of confidence, see Chapter 9.1: Health and the law.