The right to privacy

The right to privacy was enshrined in Article 12 of the 1948 Universal Declaration of Human Rights, which states:

No-one should be subject to arbitrary interference with his privacy, family, home or correspondence, nor to attacks on his honour or reputation. Everyone has the right to protection of the law against such interferences or attacks.

The right to privacy has not been clearly defined. It can be divided into separate, but related concepts:

bodily privacy: restriction of invasive physical activity, such as collection of DNA and strip searches;

communications privacy: restriction of interference with mail, telephone and electronic communications;

territorial privacy: restrictions on unwarranted intrusion into the home, workplace and streets through, for example, surveillance and the use of geolocational technologies;

information privacy: regulation of the collection and handling of personal information about an individual. This is sometimes referred to as “data protection”.

(For discussion of this and various approaches to the meaning of the right to privacy, see the introduction to the Australian Law Reform Commission’s report For Your Information: Australian Privacy Law and Practice (ALRC report 108.)

The different concepts outlined above can overlap. For example, the physical collection of DNA is bodily privacy but the information extracted from the sample is information privacy, as would information recorded as a result of telephone interception, surveillance and geospatial tracking devices.

Privacy is not the same as a duty of confidence, although (as discussed below) it is a related concept and has been invoked to redress what is essentially a breach of privacy. An obligation of confidence is generally owed by the recipient of information to the provider of the information and is not necessarily personal information about the provider. Privacy is the right of the subject of the information, no matter who provides or receives it (for more information on the duty of confidence, see Health and the law).