Section 13 - Privacy and reputation

A person has the right –

(a) not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with; and

(b) not to have his or her reputation unlawfully attacked

Specifically, a person has a right not to have his or her:

  • privacy unlawfully or arbitrarily interfered with;
  • family unlawfully or arbitrarily interfered with;
  • home unlawfully or arbitrarily interfered with;
  • correspondence unlawfully or arbitrarily interfered with; and
  • reputation unlawfully attacked.


The scope of each of these rights is discussed below.


The right not to have his or her privacy unlawfully or arbitrarily interfered with


The meaning of ‘privacy’


The meaning of privacy has not been defined in international human rights law.


‘Privacy’ is a difficult concept to define. Privacy is bound up with conceptions of personal autonomy and human dignity. It encompasses the idea that individuals should have an area of autonomous development, interaction and liberty – a ‘private sphere’ free from government intervention and from excessive unsolicited intervention by other individuals.


Privacy has both a physical or geographical aspect (‘where is private’) and an informational aspect (‘what is private’).

In practical terms ‘privacy’ is often categorised as:

  • Bodily privacy – protection of our physical selves against invasive procedures;
  • Territorial privacy – setting limits on permissible intrusion into our domestic and other environments, such as unwanted surveillance;
  • Communications privacy – privacy of mail, phone and electronic communications;
  • Information privacy – privacy of information about us.


The specific area of information privacy is currently regulated in a number of Victorian statutes including the Information Privacy Act and the Health Records Act. In practice, information privacy will overlap with other aspects of privacy and the Information Privacy Act and the Health Records Act may apply whenever identifiable information is recorded or held.


The breadth of the right to privacy under the Charter is in some senses is broader than that which is protected under the Victorian information and health privacy laws. For instance, the right to privacy in the Charter will encompass activities that do not involve recorded information, such as ‘strip-searches’. As the categories illustrate, privacy issues can arise in a number of areas. For example, in addition to the disclosure of private information, privacy issues are likely to arise in the context of the interception of correspondence, telephone tapping, search warrants and medical treatment and medical examination without consent.


Whether an interference with privacy is permissable will depend on whether there is a reasonable expectation of privacy in the circumstances. For example, a person will have a greater expectation of privacy in relation to their home than in relation to their workplace.

Public authorities will need to consider s. 13 of the Charter when engaging in activities and when making decisions that might relevantly affect a person’s privacy, whether or not those activities and decisions are permitted under current privacy-specific legislation as being authorised under law.

What is an ‘unlawful or arbitrary interference’ with privacy?


To comply with s. 13 you must ensure that any ‘unlawful or arbitrary interference’ with privacy is avoided.


‘Unlawful’


‘Unlawful’ means that no interference with privacy can take place except if the law permits it. The UN Human Rights Committee has said that a law which authorises interference with privacy must be precise and circumscribed so that governments are not given broad discretions in authorising an interference with privacy.


This means:

  • legislation must specify in detail the precise circumstances in which interferences with privacy may be permitted; and
  • a decision to interfere with privacy by a public authority in accordance with the law should be made on a case-by-case basis in accordance with the merits of each case.92
     

‘Arbitrary’


An ‘arbitrary’ interference is not the same as an unlawful interference. An interference with privacy may be arbitrary even though it is lawful.93


The requirement that all interferences must not be arbitrary means that even interferences with privacy that are provided for by law should occur in accordance with the provisions, aims and objectives of the Charter and should be reasonable in the particular circumstances.94

For example, in a case against the Canadian Government, a prisoner complained about the censorship of his letters.95 The governing legislation had provided that every letter to or from a prisoner should be read by a warden (or delegated responsible officer) who could censor any letter or part of a letter on grounds that ‘its contents were objectionable or that the letter was of excessive length’. Before the case reached the UN Human Rights Committee, the Canadian Government amended the legislation by inserting a new provision which circumscribed the reasons for censoring mail: a prisoner’s mail could be censored if it posed a threat to staff or to the operation of the prison. The revised legislation had the effect of minimising the warden’s power to censor mail. The UN Human Rights Committee found the terms of the pre-amended legislation to be too general but accepted that the amended legislation was sufficient to comply with the ICCPR.


‘Interference’


The Charter does not define what is meant by the term ‘interference’ and there is no general meaning for this term in international human rights law.


An interference in the context of s. 13 probably means a disturbance or an unwanted involvement.


The right not to have his or her family and home unlawfully or arbitrarily interfered with


Section 13 protects not only privacy, but also the family and home by providing a person with rights not to have his or her family or home unlawfully or arbitrarily interfered with. This right closely relates to s. 17 of the Charter (protection of families and children) and you should consult the section of these Charter Guidelines on s. 17 for more guidance in an appropriate case.

These rights concerning the protection of a person’s family and home are dealt with together in this section of these Charter Guidelines; however, note that they are independent rights. Legislation or policy will be affected by s. 13 if it raises an issue with respect to both family and home, or just family or home.


The meaning of ‘family’ and ‘home’


The terms ‘family’ and ‘home’ are not defined in the Charter.


In international human rights law, the term ‘family’ is given a broad interpretation and includes a range of types of family.


The approach of the UN Human Rights Committee regarding ‘family’ is not to provide a definitive list of who is, or is not, included in the term, but to provide general guidance on the definition. Thus, the UN Human Rights Committee says:


‘Regarding the term ‘family’, the objectives of the Covenant require that for purposes of article 17, this term be given a broad interpretation to include all those comprising the family as understood in the society of the State party concerned.’96


The meaning of ‘family’ in the ICCPR has evolved in the case law of the UN Human Rights Committee to reflect social developments that have occurred since the ICCPR commenced.97 For example, the UN Committee has said that family is not confined by marriage.98 A family may take various forms under this section and should be defined broadly.

The question under s. 13 of the Charter is likely to be whether there are sufficiently close and permanent personal relationships to constitute a family.


Regarding the meaning of ‘home’, the UN Human Rights Committee has said that it means ‘where a person resides or carries out his usual occupation.’ 99 This is a liberal interpretation of ‘home’ which includes both where a person lives and where a person usually works. This interpretation may not necessarily be found to apply under the Charter.


What is an ‘unlawful or arbitrary interference’ with a person’s family or home?


The Charter requires that a public authority must not unlawfully or arbitrarily interfere with a person’s family or home. This means that any interventions by a public authority which may affect a person’s family and/or home will need to be carefully considered to ensure that they are lawful and that they are not arbitrary.

The meaning of the terms ‘unlawful’, ‘arbitrary’ and ‘interference’ are discussed above. You should consult this discussion to understand more about the scope of these rights.


Interference with home has arisen in international cases in two contexts:

  • entry into a person’s home without consent, such as a forcible entry, search or arrest at home; and
  • an interference directed at the home itself, such as a denial of a right of access to the home, requisition or compulsory occupation, compulsory acquisition, destruction or removal of the property, eviction or expulsion.

The right not to have his or her correspondence unlawfully or arbitrarily interfered with


‘Correspondence’


The term ‘correspondence’ is not defined in the Charter. The UN Human Rights Committee has interpreted the term to refer to both written and verbal communications.100


What is an ‘unlawful or arbitrary interference’ with a person’s correspondence?


The Charter requires that a public authority must not unlawfully or arbitrarily interfere with a person’s correspondence. The purpose behind this requirement is to protect the confidentiality of correspondence.

The meaning of the terms ‘unlawful’, ‘arbitrary’ and ‘interference’ are discussed above. You should consult this discussion to understand more about the scope of this right.


Some examples of situations in which this right has arisen in international cases are:

  • checking, intercepting, censoring or stopping a person’s mail;
  • preventing or monitoring correspondence between categories of people;
  • tapping, bugging or metering a person’s telephone;
  • placing a person under surveillance;
  • threatening to sell private correspondence, that is in the hands of a trustee in bankruptcy.

This list is not exhaustive. You will need to consider s. 13 if any of the policy triggers above are present.

Detainee correspondence


A particular application of this right involves the right of a person detained in prison to private correspondence.
The UN Human Rights Committee has held that persons detained in prison should be allowed, under necessary supervision, to correspond with their families and reputable friends on a regular basis without interference.101


The right not to have your reputation unlawfully attacked


Section 13(b) provides a person with a right not to have his or her reputation unlawfully attacked. This provision was modelled on article 17(1) of the ICCPR. However, that instrument protects a person from unlawful attacks on a person’s ‘honour’ or ‘reputation’, whereas the Charter is confined to such attacks on a person’s reputation.


‘Reputation’


The term ‘reputation’ is not defined by the Charter and has not been defined by the UN Human Rights Committee. It refers to the beliefs or opinions that are generally held about someone.


‘Unlawfully attacked’


The Charter protects a person’s reputation from ‘unlawful attacks’. The right not to have your reputation unlawfully attacked is related to the right to freedom of expression protected by s.15 of the Charter. It is one of the bases for limiting a person’s right to freedom of expression under the Charter.102


The expression ‘unlawfully attacked’ is not defined in the Charter. The approach of the UN has been to interpret it to mean an attack that is unlawful under domestic law. This may be pursuant to the common law or by statute.

Taking this approach, an unlawful attack for the purpose of s. 13(b) would include a public attack involving untrue statements that are intended to harm the reputation of a person. The word ‘attack’ suggests something more than just comment ona person.


Expressing an opinion about a person that does not involve untrue statements intended to harm the person’s reputation is unlikely to be sufficient to trigger consideration of this right.


Note that unlike s. 13(a), s. 13(b) protects against attacks against a person’s reputation solely on the basis that it is unlawful, and does not protect against arbitrary attacks on a person’s reputation. This means that if there is lawful authority for a disclosure of information about someone else, s. 13(b) will not be breached, even if a particular attack may be unreasonable. For example, if the conduct is defenceable under defamation law, the right will not be interfered with (see Defamation Act 2005 (Vic.)).

 

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92 Human Rights Committee, General Comment 16, (Twenty-third session, 1988), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc. HRI/GEN/1/Rev.6 at 142 (2003) [3], [8].


93 Ibid.


94 Ibid [4].

95 Pinkney v. Canada, Human Rights Committee, Communication No. 27/1977, UN Doc. CCPR/C/14/D/27/1977 (29 October 1981) [34].

96 Human Rights Committee, General Comment 16, (Thirty-second session, 1988), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc. HRI/GEN/1/Rev.6 at 142 (2003) [5].


97 International Covenant on Civil and Political Rights, opened for signature, ratification and accession (all ways in which a state can agree to be bound by a Convention in international law) on 19 December 1966, 999 UNTS 171 (entered into force on 23 March 1976).


98 Hendriks v. Netherlands, Human Rights Committee, Communication No. 201/1985, UN Doc. CCPR/C/33/D/201/1985 (12 August 1988).

99 Human Rights Committee, General Comment 16, (Twenty-third session, 1988), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc. HRI/GEN/1/Rev.6 at 142 (2003) [5].

100 Ibid [8] which refers to the delivery, opening and reading of ‘correspondence’.

101 Angel Estrella v. Uruguay, Human Rights Committee, Communication No. 74/1980, UN Doc. CCPR/C/18/D/74/1980 (23 March 1983).


102 There are other ways in which freedom of expression may be limited. You should refer to section 15 of these Guidelines for guidance on the right to freedom of expression.