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Right to privacy

  Published July 4, 2022

THE inviolability of a person’s privacy of home and dignity is a fundamental right under Article 14 of the Constitution. It is one of the rare strongly worded constitutional rights which has not been further saddled with ‘reasonable restrictions as per law’. However, despite the drafters specifically using the word ‘privacy’ (unlike in the US Constitution where the right to privacy was recognised by interpreting penumbras cast by other constitutional protections), there is still scant understanding of what the term ‘privacy’ really means and what types of restrictions it entails.

In simple speak, the right to privacy can be best understood as just that: the right to keep private, the right of a person to keep any matter free from any type of unwarranted interference or surveillance (government or private). The right to privacy is divided into four major substantive areas: territorial, bodily, communications and information privacy.

Territorial privacy is arguably the oldest conception of privacy. Arising from the capitalist concept of land ownership — territorial privacy entails the right of a person to enjoy solitude within their own home or any other property they might own. A strict textual interpretation of Article 14 would suggest that this is the only form of privacy guaranteed in Pakistan. However, the Supreme Court in ‘Mohatarma Benazir Bhutto vs President of Pakistan’ read Article 14 expansively, to provide the blanket of privacy protections to all facets of Pakistani citizens’ lives: “The term ‘privacy of home’ cannot be restricted to the privacy in respect of home, the privacy within the four walls of the home. It refers to the privacy, which is sacred and secure like the privacy a person enjoys in his home. Such privacy of home a person is entitled to enjoy wherever he lives or works, inside the premises or in open land. Even the privacy of a person cannot be intruded in public places.”

Bodily privacy is a more contemporary interpretation of the concept of privacy which has been relied upon by feminist movements to enforce the broader right of bodily autonomy. In January 2021, Justice Ayesha Malik upheld this form of privacy when the Lahore High Court in the ‘Sadaf Aziz vs the Federation of Pakistan’ declared the two-finger test for female sexual assault survivors (known as the ‘virginity test’) to be illegal and unconstitutional because it was “by its very nature invasive and an infringement on the privacy of a woman to her body”.

Information privacy has arguably become the hottest topic.

Privacy of communications and correspondence has always been well understood — society has frowned upon eavesdropping on private conversations. As technology has evolved, the techniques of interception and mass surveillance have expanded as well, birthing the need for even more advanced legal protections to curtail and regulate the government’s powers of eavesdropping on its citizens. The Supreme Court of Pakistan in the aforementioned ‘Mohatarma Benazir Bhutto’case upheld this form of privacy when it clearly stipulated restrictions on government surveillance of citizens’ communications: “It is unlawful to intercept, reveal the existence of and disclose or divulge the contents of, wire or oral communications, unless the interceptor has previously obtained an order of a court permitting a wiretap or other interception of the communication, or one party has consented to the interception.”

Finally, we come to information privacy, which has become arguably the hottest topic in privacy law in modern times due to the advent of Big Tech, surveillance capitalism and predictive behavioural AI algorithms. Information privacy arises from the collection and processing of personal data/information of people by government and private entities for commercial or any other reasons. Informational privacy has recently taken centre stage in privacy circles because of the Snowden Leaks and Cambridge Analytica scandals. While the former exposed how people’s information on the World Wide Web is being massively surveilled by US intelligence agencies, the latter exposed an even darker reality: how information being shared by us with seemingly harmless social media companies can actually be used to psychologically profile us, manipulate our political choices, and polarise our democracies.

In Pakistan, the right to information privacy is still not acknowledged as evident in the complete lack of any national/ provincial/ comprehensive or sectoral data protection regulations. Nor is there any judicial precedent. The status of Pakistan’s draft data protection bill is also in limbo at the moment due to the recent change in government. Our legislatures and courts need to move fast and recognise and affirm our right to keep our information private so as to fulfil and secure the promise of Article 14 — or else the citizens of Pakistan will risk losing their privacy and dignity in the digital era.

The writer is a data privacy and technology law specialist.

Published in Dawn, July 4th, 2022

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