Is the Right to Privacy a Human Right? - Klinik Hukumonline
Is the Right to Privacy a Human Right?
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Is the Right to Privacy a Human Right?

Is the Right to Privacy a Human Right?

Question

In relation to the Q&A on the right to privacy as a derogable right, my fundamental question is whether privacy is a human right regulated in the Indonesian Constitution. What is the legal basis? Regards.

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This article is an English translation of Apakah Hak atas Privasi Termasuk HAM? which was written by Wicaksana Dramanda, S.H. and was published on Thursday, 22 May 2014.

All legal informations which are available through Klinik hukumonline.com have been prepared for educational purposes only and are general in nature (read the complete Disclaimer). In order to obtain legal advice specific to your case, please consult with Justika Partner Consultant.

The right to privacy is not explicitly stated in the 1945 Constitution of the Republic of Indonesia (“1945 Constitution”). However, the right to privacy is implicitly contained in Article 28G Section (1) 1945 Constitution as follows:

"Every person has the right to the protection of himself, his family, honor, dignity, and property under his control, as well as the right to a sense of security and protection from the threat of fear of doing or not doing something which is a human right."

The formulation of Article 28G Section (1) 1945 Constitution has the same meaning of protection as the formulation of Article 12 Universal Declaration of Human Rights (“UDHR”) which was later adopted into Article 17 International Covenant on Civil and Political Rights (“ICCPR”) which explicitly guarantees the right to privacy.

In the Decision of the Constitutional Court Number 50/PUU-VI/2008 on the Case of Judicial Review of Law Number 11 of 2008 on Electronic Information and Transactions, the Constitutional Court provides a translation of Article 12 UDHR and Article 17 ICCPR. In this translation, the word "privacy" is translated as "personal/personal matters" as stated in Article 28G 1945 Constitution which is:

Article 12 UDHR:

No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks”.

Translation of the Constitutional Court Decision:

"No one shall be subjected to arbitrary interference with his privacy matter, family, household or correspondence, nor to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks.”

Article 17 ICCPR :

  1. “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honor and reputation”;
  2. “Everyone has the right to the protection of the law against such interference or attacks”.

Translation of the Constitutional Court Decision

  1. “No one shall be subjected to arbitrary or unlawful interference with his privacy matter, family, household or correspondence, nor to unlawful attacks on his honor and reputation."
  2. "Everyone has the right to the protection of the law against such interference or attacks."

General Comment Human Rights Committee No. 16 on Article 17 ICCPR, which guarantees the right to privacy, does not specifically explain the exact meaning of privacy. Several legal experts have tried to provide a definition and meaning of the right to privacy.

Russel Brown defines the right to privacy as a right that arises as a result of private property rights over certain resources (Russel Brown: 2006, p. 592). Meanwhile, Judge Cooly defines the right to privacy as the right to self-determination.

This definition was later cited in the United States Supreme Court decision as “the right of bodily integrity”. Strictly speaking, the Supreme Court stated that the right to privacy is a fundamental individual right for every person to be free without any interference from the government in deciding what is best for themselves (Eoin Carolan: 2008, p6). The Supreme Court decision has even become the basis for the legalization of the practice of abortion in the United States through the case of Jane Roe v. Henry Wade in 1973 (Roe v. Wade, 410 U.S. 113, 1973). Therefore, Judge Harlan stated that the right to privacy is a contemporary concept of the right to individual freedom (G. Negley: 1966, p. 319).

Like the general character or nature of human rights which are indivisible, interrelated, and interdependent, the right to privacy is closely related to the right to freedom of speech. The right to privacy and the right to freedom of speech are mutually reinforcing. Providing protection for the right to privacy also means providing protection for the right to freedom of speech (Eoin Carolan: 2008, p. 25).

For example, in a democratic society, it is important to maintain the privacy of communications between citizens/society, for there is a concern about monitoring of the society by irresponsible parties will result in a lack of freedom of speech. Such a situation may result in not being able to voice or speak up about constructive ideas in democratic life (Eoin Carolan: 2008, p. 27). The meaning is the right to privacy guarantees protection from the threat of fear of doing or not doing something which is a human right.

Besides the mutually reinforcing relationship, the presence of the right to privacy must also be interpreted as a balancing of the right to freedom of speech. The purpose of the balancing is that the right to reputation which is part of the right to privacy should be a limitation of the right to freedom of speech (Giri A.Taufik, Identifying The Traces of Particularity in Indonesia Freedom of Expression, 2011, p. 389). The concept of balancing is explicitly stated in Article 28J Section (1) 1945 Constitution which states that in exercising their human rights, a person's human rights will be limited by the rights of others. In terms of the right to freedom of speech, the right to the reputation of others becomes a limitation for every citizen in exercising their freedom of speech.

According to the above description, although it does not explicitly state the right to privacy, the formulation of Article 28G Section (1) 1945 Constitution already contains the values of the right to privacy which are guaranteed in Article 12 UDHR and Article 17 ICCPR. Therefore, Article 28G Section (1) 1945 Constitution can be considered as the constitutional basis for the guarantee of the right to privacy.

In the context of the indivisible, interrelated, and interdependent nature of human rights, Article 28G Section (1) 1945 Constitution is closely related to Article 28E Section (2) and (3) 1945 Constitution which guarantees the right to self-determination and the right to freedom of speech or expressing thoughts and opinion. Both of these human rights guarantees, need to be understood and realized in a balanced manner.

These are the answers we can provide, we hope you will find them useful.

Legal Basis:

  1. 1945 Constitution of the Republic of Indonesia;
  2. Universal Declaration of Human Rights;
  3. International Covenant on Civil and Political Rights.

Reference:

  1. Eoin Carolan, “The Concept of a Right to Privacy”, in Eoin Carolan, Hilary Delany, The Right to Privacy: A Doctrinal and Comparative Analysis, Thompson Round Hall, England, 2008;
  2. G. Negley, “Philosophical Views on the Value of Privacy” Law & Contemporary Problems Law Review Vol 31 No. 319, 1966;
  3. General Comment Human Rights Committee No. 16: Article 17 (The right to respect of privacy, family, home and correspondence, and protection of honor and reputation);
  4. Giri A.Taufik, Identifying The Traces of Particularity in Indonesia Freedom of Expression, 2011;
  5. Roe v. Wade, 410 U.S. 113 (1973);
  6. Russel Brown, “Rethinking Privacy”, Alberta Law Review Vol. 43 No. 589, 2006.
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