Privacy

Privacy

RIGHT TO PRIVACY


Section 37 of the 1999 Constitution of the Federal Republic of Nigeria as amended provides, “The privacy of citizens, their homes, correspondence, telephone conversations and telegraphic communications is hereby guaranteed and protected.” Privacy is a legal concept that has remained ill-defined and delineated. [See Nwauche E. S. 2007. The Right to Privacy in Nigeria. Review of Nigerian Law and Practice Vol. 1(1) Centre for African Legal Studies  2007. Pg. 62-90. P. 64]. It is sometimes used loosely to denote a range of personal affairs that a person wants to keep away from the public glare, but there remains a range of activities that falls between the grey areas between private affairs and public life which sometimes make the identification of the sphere of privacy difficult. Admittedly, it is not defined in the 1999 Constitution. It may be one of those concepts that are better described than defined. [ibid] Notwithstanding, attempts have been made to define privacy, it has been defined as the right to be left alone. [See Brandeis J in Olmstead v United States 277 US 438 478].  It has also been defined as “the right of the individual to be protected against intrusion into his personal life or affairs, or those of his family, by direct physical means or by publication of information.” [Report of the Committee on Privacy and Related Matters 1990 Cmnd. 1102, London: HMSO at 7].  Neethling et al defined privacy as “An individual condition of life characterised by exclusion from publicity. This condition includes all those personal facts which the person himself at the relevant time determines to be excluded from the knowledge of outsiders and in respect of which he evidences a will for privacy.” [J. Neethling, J.M Potgeiter P.J Visser. 1996. Neethling’s Law of Personality. Butterworths Durban. P. 36. This definition was adopted by Harms JA in National Media Limited AO v Jooste 1996 (3) SA 262 (A) 271.] The inherent paucity of Nigerian judicial exposition of the concept is because the issue of privacy and its enforcement is not very common in our legal system.

An idea of the key issues in the right to privacy can be found in the classification of the jurist Prosser of the four torts which had then emerged from the American protection of privacy. [Nwauche E. S. Op. cit.. pg 65] These four torts are: [ibid] (i) publicity which places plaintiff in a false light; (ii) appropriation of the plaintiffs name or likeness; (iii) intrusion upon plaintiff’s seclusion or solitude and (iv) public disclosure of private facts about the plaintiff. Even though these torts have found different manifestations in different countries, they remain the signposts for the protection of the right to privacy. [ibid]

A breach of the right to privacy can take two main broad forms; intrusion to a person’s private life, and informational breach. [ibid] The former deals with cases where a person has without authorisation obtained and published sensitive information about another, [ibid 68] while the latter deals with a person who has obtained those information legitimately, but has disclosed them unjustly and without authorisation, in circumstances in which the person knew or ought to have known that he was expected to treat the information with confidentiality. In Campbell v MGN Ltd [2004]UKHL 22, the House of Lords noted that various aspects of privacy protection were fast developing especially with the enactment of the Human Rights Act 1998  and that the “…courts of equity have long afforded protection to the wrongful use of private information by means of the cause of action which became known as breach of confidence.” Intrusion as a breach of privacy involves interference with a person’s peaceful and quite enjoyment of his life, by for example trespassing on his property, disturbing his sleep by blaring loud noise or sound, otherwise actionable as nuisance, by subjecting him or his residence or belongings to unauthorised search etc. [Nwauche E. S. Op. cit.. pg 66]

A case of informational breach of privacy occurred in the case of Douglas and Zeta Jones v Hello! [2001] QB 967, 1001, in which a magazine sought to publish the wedding of the Douglas, both of whom were celebrities, Sedley J held, “What a concept of privacy does, however, is accord recognition to the fact that the law has to protect not only those people whose trust has been abused but those who simply find themselves subjected to an unwanted intrusion into their personal lives. The law no longer needs to construct an artificial relationship of confidentiality between intruder and victim: it can recognise privacy itself as a legal principle drawn from the fundamental value of personal autonomy.”

On the nature of what is sought to be protected, the view of Lord Hoffman in Campbell v MGN Ltd (supra) “What human rights law has done is to identify private information as something worth protecting as an aspect of autonomy and dignity…. As Sedley LJ observed in a perceptive passage in Douglas v Hello! Ltd (supra), the new approach takes a different view of the underlying value which the law protects. Instead of the cause of action being based upon the duty of good faith applicable to confidential personal information and trade secrets alike, it focuses upon the protection of human autonomy and dignity- the right to control the dissemination of information about one’s private life and the right to the esteem and respect of other people.”

The relevance of this right bothers on the question whether public officers enjoy this right, and the extent of protection, if any granted to them or their family, in the purview of assets declaration. This is more forcefully dealt with under the next chapter.