The Right to Privacy in EU, Canada, South Africa, and Inter-American Law

Irrespective of specific provision of privacy or otherwise the jurisprudence in other countries is remarkably similar.

Most of the arguments by counsel in the Right to Privacy case (K S Puttaswamy, hereinafter Puttaswamy), both for the Petitioners and the Respondents, were based on the pros and cons of the cases decided by the US Supreme Court. That is understandable, because apart from the tradition of our Supreme Court in viewing US Supreme Court decisions on constitutional cases with favour, the earlier judgments of the Supreme Court of India on privacy, which were at issue in the case, namely MP Sharma, Kharak Singh and Gobind, had also looked at the US Supreme Court judgments deferentially and based their decisions on them. The US Constitution, like our Constitution, does not explicitly protect the Right to Privacy as a Fundamental Right, but despite that the US Supreme Court read privacy into the 4th and 7th Amendments of the US Constitution. That is exactly what the Supreme Court in Puttaswamy noted, namely that though there is no explicit right to privacy in the US Constitution, the US Supreme Court not only recognized it, earlier from the notion of physical spaces (individual in the home being protected from State intrusion, based on the trespass doctrine) to extrapolating that, on the basis of the doctrine of the reasonable expectation of privacy, in respect of physical spaces, not being a home and from thereon the US Supreme Court moved to locate various aspects of privacy in personal lives of people, not related to physical spaces, including conscience, education, personal information, communications and conversations, sexuality, marriage, procreation, contraception, individual beliefs, thoughts and emotions, political and other social groups. These also included the issues of surveillance. Pertinently, Chandrachud J. has noted that in all these cases, the US Supreme Court tried to balance the individual right to privacy with the interest of State in maintaining law and order. This is an important observation for the future when the merits of the Aadhaar case are actually argued (per Chandrachud J. page 164).

It has to be noted, however, that apart from the US jurisprudence on the right to privacy, there is a wealth of jurisprudence in other jurisdictions, which is what this article will deal with.  This is also because international covenants have also been entered into specifically providing for the Right to privacy.

Unlike the US constitution, the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), the, the European Convention of Human Rights and the American Convention of the American of Human Rights, the South African Constitution specifically and explicitly confer the Right to Privacy. Is the jurisprudence different in those countries? Let us look at the case law noted by the Supreme Court in Puttaswamy. However irrespective of specific provision of privacy or otherwise the jurisprudence is remarkably similar. The judgments of courts in these jurisdictions, particularly in Canada, South Africa, Europe and Latin America evidence this. They also played an important role in shaping the privacy judgment in Puttaswamy. Let us have a look at them.


Canadian jurisprudence closely follows the US trajectory but with few important differences. Though it does not have a Bill of Rights in its Constitution, the Canadian Charter of Rights and Freedoms of 1982 provides for fundamental rights. Like the US Constitution, the Canadian Charter doesn’t have an explicit right to privacy. However section, 7 of the Canadian Charter, (with security of person also included) and Section 8 (Right against unreasonable search) have provided the basis of reading privacy into the Charter. There is, in addition, the Privacy Act and Personal Information Protection and Electronic Documents Act.

In Hunter et al v. Southam, Inc, relating to a law authorizing Investigation Branch to enter and search the Supreme Court of Canada, while adopting the decision of the US Supreme Court in Katz, held that, while Section 8 of the Charter is an entrenched provision not open to legislative amendment, “the limitation on the right guaranteed by s.8, whether it is expressed negatively as freedom from “unreasonable” search and seizure, or positively as an entitlement to a “reasonable” expectation of privacy, indicates that an assessment must be made as to whether in a particular situation the public’s interest in being left alone by government must give way to the government’s interest in intruding on the individual’s privacy in order to advance its goals, notably those of law enforcement.”

In the case of R v. Brandon Roy Dyment, the Canadian Supreme Court was inter alia faced with the question of whether a police officer violated Section 8 of the Charter by seizing a vial of a patient’s blood that was collected by the physician for medical purposes.

“The Court noted that the claims of privacy may be classified as those involving “territorial or spatial aspects, those related to person, and hose that arise in information context.”

The Court held that “the use of a person’s body without his consent to obtain information about him, invades an area of personal privacy essential to the maintenance of his human dignity

The court further held that, the patient may “be deemed to have impliedly consented to a sample being taken for medical purposes, but he retained an expectation that his privacy interest in the sample continue past the time of its taking.”

In R v Plant, where the question was whether a warrantless perimeter search which led the police to get a warrant which led to detection of a hundred seedling marijuana plants was a reasonable search, the Supreme Court, whiled holding that search violated Section 8 of the Charter, stated that, “In fostering the underlying values of dignity, integrity and autonomy, it is fitting that s. 8 of the Charter should seek to protect a biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state. This would include information which tends to reveal intimate details of the lifestyle and personal choices of the individual.”

In R v Walter Tessling, a case involving search by thermal imaging, the Court held that there was no violation Section 8 of the Charter as thermal imaging did not reveal the core of personal information or details of personal lifestyle of the person concerned. The Court further held that in determining the violation of Section 8 of the Charter, there is a need to distinguish between “personal privacy, territorial privacy and informational privacy.”

In R v. Duarte, the Supreme Court of Canada was to decide the issue, whether the state’s interception of private communication with the consent of one of the parties, without prior judicial consent, infringed the freedom guaranteed under Section 8 of the Charter. The Court noted that if privacy is the “right of the individual to determine for himself when, how, and to what extent he will release personal information about himself”,… a reasonable expectation of privacy demands that state may only violate this right by surveillance by establishing that an offence has been or is being committed and that interception of private communications stands to afford evidence of the offence.

The Supreme Court of Canada reiterated the factors to be considered to determine reasonable expectation of privacy in R v Spencer, viz., “(1) the subject matter of the alleged search; (2) the claimant’s interest in the subject matter; (3) the claimant’s subjective expectation of privacy in the subject matter; and (4) whether this subjective expectation of privacy was objectively reasonable, having regard to the totality of the circumstances”.

“The Court noted that informational privacy includes distinct yet overlapping concepts, namely, privacy as secrecy, privacy as control and privacy as anonymity.”

South Africa

Section 14 of the Bill of Rights in South African Constitution of 1996 specifically provided that everyone has the Right to Privacy, which includes not to have their person or home searched; property searched; possessions seized; or the privacy of their communications infringed. Thus the section itself expands the ambit of privacy from the home to persons and their communications.

While in National Media Ltd. V Jooste, the South African Court defined privacy in the broadest of terms, including “the competence to determine the destiny of private facts,” in Bernstein v Bester and Others the Court went to say that, “Privacy is acknowledged in the truly personal realm, but as a person moves into communal relations and activities such as business and social interaction, the scope of personal space shrinks accordingly.”

The trend in Bernstein was continued in Investigating Directorate: Serious Offences v Hyundai Motor Distributors Ltd., where the court held that, “privacy is a right which becomes more intense the closer it moves to the intimate personal sphere of the life of human beings, and less intense as it moves away from that core.” The court however emphasized that, “A balance must therefore be struck between the interests of the individual and that of the state, a task that lies at the heart of the inquiry into the limitation of rights

“On the issues of sexuality, the South African Supreme Court emphasized the close relationship between autonomy, privacy and equality.”

In the National Coalition for Gay and Lesbian Equality v Minister of Justice, a matter relating to anti-sodomy laws, the Court noted that in respect of autonomy and privacy, “What is crucial is the nature of the activity, not its site

Again in Minister of Home Affairs and Another v Fourie and Another, a matter relating to same sex marriages, the court emphasized the relationship between privacy, dignity and equality and noted, “They also go beyond simply preserving a private space in which gay and lesbian couples may live together without interference from the state. Indeed, what the applicants in this matter seek is not the right to be left alone, but the right to be acknowledged as equals and to be embraced with dignity by the law

In NM and Others v Smith and Others, a case of disclosure of the names of three women who were HIV positive in a biography, the court again emphasized inter-relationship between autonomy, privacy, dignity the right of person of non disclosure and stated, “The more intimate that information, the more important it is in fostering privacy, dignity and autonomy that an individual makes the primary decision whether to release the Information.”

European Court of Human Rights

In Europe, there are two distinct but related frameworks to ensure the protection of the right of privacy. The first is the European Convention on Human Rights (ECHR), an international agreement to protect human rights and fundamental freedoms in Europe. The second is the Charter of Fundamental Rights of the European Union (CFREU), a treaty enshrining certain political, social, and economic rights for the PART European Union. Under ECHR (“the Convention”), the European Court of Human Rights (ECHR), is the adjudicating body, which hears complaints by individuals on alleged breaches of human rights by signatory states. Similarly, under CFREU (“the Charter), the Court of Justice of the European Union (CJEU), is the adjudicating authority.

Article 8 of the European Convention of Human Rights (“Convention”) provides for the right to to respect for private and family life and also how it may be interfered with. It specifically provides as follows:-

8.1. Everyone has the right to respect for his private and family life, his home and his correspondence.

8.2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The European Court of Human Rights has dealt with questions relating to the overlapping issues of privacy and family life, data collection, retention and protection and surveillance. A majority of these decisions hinge on the extent to which private life is breached and evaluate the justification for such a breach by State parties.

In the case of Niemietz v Germany, the ECHR observed that, “The Court does not consider it possible or necessary to attempt an exhaustive definition of the notion of ‘private life’. However, it would be too restrictive to limit the notion to an‘inner circle’ in which the individual may live his own personal life as he chooses and to exclude therefrom entirely the outside world not encompassed within that circle. Respect for private life must also comprise to a certain degree the right to establish and develop relationships with other human beings.”

In Costello-Roberts v United Kingdom the ECHR stated that, “the notion of ‘private life’ is a broad one” and “is not susceptible to exhaustive definition”.

In Malone v. United Kingdom the applicant alleged that State party routinely intercepted his telephone conversations and that of his wife by “metering” which sought to record the numbers dialled by a particular metered telephone and by way of “tapping” wherein calls were documented from the tapped telephone. Previously the applicant, Malone, was charged with several offences relating to dishonest handling of stolen goods. He was acquitted thereafter and the State Party produced as evidence details of telephone conversations allegedly obtained through a warrant from appropriate authority.

In a civil action initiated against the Metropolitan Police for telephone interference Mr. Malone sought relief on the grounds that his Right to Privacy, Property and Confidentiality were breached. The Hon’ble Vice Chancellor in his judgment held that he had no jurisdiction over Article 8 claims but in a detailed analysis of domestic law as it pertained to telephonic surveillance held the action legal and dismissed the civil claim accordingly. The Vice Chancellor in dealing with arguments raised by the applicant on the convention right to privacy held that as there was no right to privacy to be found in English Law there arose no duty on the Post Office to maintain confidentiality of communications between telephone subscribers. The Vice Chancellor concluded that there was neither a general right to privacy nor a particular right to hold a telephone conversation in private under English Law. It held that Article 8 of the Convention could not be invoked as it did not form part of the law in England and couldn’t “confer any direct rights on the applicant” that could be “enforced” by the domestic court.

The ECHR was to therefore determine if there was interference of the applicant’s Article 8 Right and whether such interference was justified in accordance with the law. The Court held that the phrasing of the Article 8 Convention Right implied that there must be a measure of legal protection in domestic law against arbitrary interference against an individual’s right to privacy. The court therefore held that such surveillance violated the applicant’s Article 8 Right to Privacy without justifiable cause in public interest or to combat crime.

Thus the Convention rights applied to a citizen in the UK. However the UK courts could not apply the Convention rights in their domestic courts because of their legal system.

In S and Marper v. United Kingdom, the applicant was arrested previously and his fingerprints and DNA samples were taken. They were retained after criminal proceedings had terminated against him. The applicant filed a tortious claim against UK Government on violation of his Right to Privacy. The domestic Court rejected his petition finding that there was no violation of Convention Rights and the interference was necessary and justified in public interest to combat crime. The applicant therefore approached the ECHR which had to decide the issue whether the collection and retention of fingerprints, DNA and cellular data was a violation of the applicants’ Article 8 Right to Privacy.

“The ECHR held that “Private Life” was a broad term that could not be exhaustively defined but entailed aspects of physical and psychological integrity, physical and social identity and elements of oneself such as gender and sexual identity and sexual life.”

It also held that there was a violation of the applicants’ Right to Privacy since the retention of their data was not a justifiable interference and had no legitimate aim in a democratic society. The ECHR also emphasized the key principles with respect to derogation of Article 8, namely that any it be in “accordance with law”, in the pursuit of a “legitimate aim” and “necessary in democratic society”

In Uzun v Germany, a case involving collection of data through the GPS and the use of it in a criminal case, the ECHR, while examining an application claiming violation of Article 8 observed that, “There are a number of elements relevant to a consideration of whether a person’s private life is concerned by measures effected outside a person’s home or private premises. Since there are occasions when people knowingly or intentionally involve themselves in activities, which are or may be recorded or reported in a public manner, a person’s reasonable expectations as to privacy may be a significant, although not necessarily conclusive,  factor…” Thus according to the ECHR, a balance had to be struck between the individual interest of privacy, based on the reasonable expectation of privacy and the public interest. However the ECHR held that, given the seriousness of potential crimes (murder attacks claimed by a terrorist movement and prevention of further attacks), the surveillance of the applicant had been appropriate.

In RE v The United Kingdom, in a case involving the applicant who complained violation of Article 8 for being detained three times in relating to a murder of a police officer under a law which sanctioned covert surveillance of detenues, their lawyers, doctors and appropriate adults, the court held that while intrusion into legal consultation was a serious breach for which appropriate safeguards had to be in place, in respect of consultation between appropriate adults and detenues, the same privilege was not available and since safeguards were in place in this respect, there was no breach of Article 8.

In Roman Zakharov v Russia, where the Applicant claimed a violation of Article 8 on the ground that mobile operators permitted unrestricted interception of all telephone communications by security services without judicial authorization under applicable law, the ECHR held that, “Given the secret nature of the surveillance measures provided for by the legislation, their broad scope (affecting all users of mobile telephone communications) and the lack of effective means to challenge them at national level… Russian law did not meet the ‘quality of law’ requirement and was incapable of keeping the interception of communications to what was “necessary in a democratic society”. There had accordingly been a violation of Article 8 of the Convention

The European Court of Justice (ECJ) adjudicates over disputes arising out of the European Charter of Fundamental Rights (“Charter”); the relevant provisions are as follows:

Article 7

Respect for private and family life

Everyone has the right to respect for his or her private and family life, home and communications. 

 Article 8

Protection of personal data

  1. Everyone has the right to the protection of personal data concerning him or her. 
  2. Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified. 
  3. Compliance with these rules shall be subject to control by an independent authority.

Article 11

Freedom of expression and information

  1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.
  2. The freedom and pluralism of the media shall be respected

 Article 52

 Scope of guaranteed rights

  1. Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognized by the Union or the need to protect the rights and freedoms of others. 
  2. Rights recognized by this Charter which are based on the Community Treaties or the Treaty on European Union shall be exercised under the conditions and within the limits defined by those Treaties. 
  3. In so far as this Charter contains rights, which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.”

In Asociación Nacional de Establecimientos Financieros de Crédito (ASNEF) v Spain, a case which involved the implementation of Articles 7 and 8 of the European Charter with respect to the Data Protection Directive of the European Union in Spain, the ECJ held that the Directive was defective as it applied only to information kept in a specified public data bank rather than more generally to public and private databases. The ECJ held that this serious infringement of Articles 7 and 8 had to be rectified.

In Digital Rights Ireland Ltd. v. Minister relates to joined cases C-293/12 and C-594/12 requesting for a preliminary ruling on the validity of the Directive 2006/24/EC of the European Parliament which allowed telephone and electronic communications services providers to retain personal data for a specified period. The first case related to Digital Rights, where the Irish legislative and administrative measures concerning the retention of data relation to electronic communications for a period specified  by law in order to prevent crime and ensure security. The second request arose from the Austrian Constitutional Court where a set of federal laws to transposed the 2006 Directive into Austrian national law was challenged on the basis that it infringed the fundamental right of individuals in so far as it allowed the retention of many types of data in relations to an unlimited number of persons for a long time subjecting them to the risk of investigation by authorities and undue exposure of their private lives.

The ECJ held that establishing interference of fundamental right to privacy does not matter whether the private information is sensitive or whether the concerned persons have been inconvenienced in any way. It further stated that any derogations and limitations in relation to protection of personal data must apply only as far as “strictly necessary.” It was held that the 2006 Directive failed to lay down any objective criterion and precise rules and neither substantive nor procedural conditions relating to the authorities’ access of it in order to govern the extent of its interference rights enshrined in Articles 7 and 8. In holding the 2006 Directive to be invalid, the ECJ stated that as per the principle of proportionality the acts of EU institutions must not exceed limits of what is appropriate and necessary to achieve objectives sought by it.

In a similar 2016 case of Tele 2 Sverige AB v. Post-och telestyrelsen C-203/15 & C-698/15, the question referred for preliminary ruling was whether the EC Directive 2002/58 read in light with Articles 7, 8 and 52 (1) of the Charter precluded national law from general and indiscriminate retention of all traffic and location data of all subscribers and registered users for the purpose of fighting crime. The issue related to the refusal of Tele 2 Sverige AB, an electronic communications services, to retain and provide electronic communications data to the national police authority citing the decision in the Digital Rights. The police authorities held them to be in breach of their duty under national laws.

While holding that States can adopt legislation allowing targeted retention of data, ECJ observed that law must lay down clear and precise rules governing the scope and application of the data retention measure and imposing minimum safeguards so that there is effective protection against risk of misuse. Further, data retained must be limited to whatever is strictly necessary and objectives sought must be proportionate to seriousness of interference in fundamental rights. These conditions may be truly respected when as a general rule, unless there is urgency, be subject to prior review by an independent body/court.

The Inter-American Court of Human Rights

Article 11 of the American Convention on Human Rights provides the Right to Privacy as follows.

1.Everyone has the right to have his honor respected and his dignity recognized.

  1. No one may be the object of arbitrary or abusive interference with his private life, his family, his home, or his correspondence, or of unlawful attacks on his honor or reputation.
  2. Everyone has the right to the protection of the law against such interference or attacks.”

In Artavia Murillo ET AL. (“In Vitro Fertilization”) v Costa Rica, the Inter-American Court was dealing with the prohibition by the State of the practice of in vitro fertilization and whether it constituted arbitrary interference with the right to privacy. The Court held, “The protection of private life encompasses a series of factors associated with the dignity of the individual, including, for example, the ability to develop his or her own personality and aspirations, to determine his or her own identity and to define his or her own personal relationships. The concept of private life encompasses aspects of physical and social identity, including the right to personal autonomy, personal development and the right to establish and develop relationships with other human beings and with the outside world. The effective exercise of the right to private life is decisive for the possibility of exercising personal autonomy on the  future course of relevant events for a person’s quality of life. Private life includes the way in which individual views himself and how he decides to project this view towards others, and is an essential condition for the free development of the personality… Furthermore, the Court has indicated that motherhood is an essential part of the free development of a woman’s personality. Based on the foregoing, the Court considers that the decision of whether or not to become a parent is part of the right to private life and includes, in this case, the decision of whether or not to become a mother or father in the genetic or biological sense.

In Escher et al v Brazil, the issue was whether telephonic interception and monitoring of telephonic lines carried out by the military police violated Article 11 of the Convention. The Court held that, “Article 11 of the Convention recognizes that every person has the right to respect for his honor, prohibits an illegal attack against honor and reputation, and imposes on the States the obligation to provide legal protection against such attacks. In general, the right to honor relates to self-esteem and self-worth, while reputation refers to the opinion that others have of a person…

[O]wing to the inherent danger of abuse in any monitoring system, this measure must be based on especially precise legislation with clear, detailed rules. The American Convention protects the confidentiality and inviolability of communications from any kind of arbitrary or abusive interference from the State or individuals; consequently, the surveillance, intervention, recording and dissemination of such communications is prohibited, except in the cases established by law that are adapted to the objects..”

  Thus it is clear that Supreme Court was absolutely correct in Puttaswamy in holding that the Right to Privacy has to be read into the fundamental rights of the Indian Constitution.

Anand Grover is a Senior Advocate, Supreme Court of India and founder-trustee of Lawyers Collective and heads the HIV/AIDS Unit.