The right to privacy

The right to privacy is enshrined in Article 12 of The Universal Declaration of Human Rights (1948):

No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and 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 DNA collection 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 an individual’s personal information; this is also called “data protection”.

(For discussion of the meaning of the right to privacy, see Chapter 1: Introduction to the inquiry – the meaning of privacy, in 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 relates to bodily privacy, but the information extracted from the sample relates to information privacy. Similarly, interference with information recorded as a result of telephone interception relates to communications privacy, while the personal information about an individual recorded as a result of this interception relates to information privacy.

Privacy is not the same as a duty of confidence, although it is a related concept and has been invoked to redress what is essentially a breach of privacy. The recipient of confidential information generally owes an obligation of confidence to the provider of the information regardless of whether the information is 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 about the duty of confidence, see Health and the law.