The right to privacy
The right to privacy is often cited as essential to the protection of human dignity and the right to freedom. It aims to protect and to establish boundaries around access to communication, as well as personal data and financial information. This right, however, can be subject to exceptions depending on the laws of the relevant country. In South Africa, the right to privacy is mentioned in the Constitution and the Protection of Privacy and Information Act of 2013 which regulates data protection. The Regulation of Interception of Communications and Provision of Communication‑related Information Act (RICA) is the legal framework that regulates surveillance in South Africa. It allows for private communication to be accessed by state institutions such as the State Security Agency if there are reasonable grounds to believe that a criminal offence is being committed.
According to Privacy International, individuals know when their other rights, such as the right to basic education or the right to freedom of association, are interfered with but the right to privacy is a significant challenge because it can be compromised without the knowledge of the individual. Although people often try to protect themselves, there is concern that commercial organisations and government agencies have the ability to look into individuals’ internet histories, actions and behaviours and monitor or influence them without the individual’s knowledge.
Privacy and internet use
There have been growing concerns about the ethics of the use of and access to personal information. Through services such as social media and messaging apps, people leave a trail of personal information that is often stored to create a profile on their behaviours. Advancements in technology have made it easier to collect large amounts of personal information and store them for long periods of time.
When it comes to internet use, agreeing to the privacy policies is often a precondition to gaining access to some sites like social media platforms. A large number of these privacy policies allow for user information to be exchanged or sold. Personal information is of high commercial value to private advertising agencies to influence consumers. Some platforms, like Pinterest for example, allow users’ information to be shared with third parties such as advertisers. Another social media platform, Twitter, reserves the right to sell all of its users’ information under certain circumstances.
The growing concerns about privacy and data protection led WhatsApp to introduce end-to-end encryption to its messaging system in 2016. End-to-end encryption is a system which allows two users to send each other information without any third party, including the messaging company itself, to have access to the information. In this case, WhatsApp does not have the ability to see the content of messages or listen to calls on WhatsApp.
Why is the issue of privacy so important for some?
The degree of privacy that one should have is a topic of debate among various parties. For some governments, it is essential to have access to the information and communication records of some individuals or entities in order to investigate unlawful activity and to crack down on crimes such as human trafficking. Advocates for the protection of the right to privacy argue that this gives governments and commercial companies too much power over citizens. Easier access to personal information by third parties leaves the public vulnerable to spying by the state and to cybercrimes such as information theft and manipulation by criminals. A report on the future of privacy by the PEW Research Centre shed light on some concerns expressed by individuals about the disparity between individuals who want to ensure privacy and governments who want to eliminate it.
Recently, there have been growing concerns over the measures being implemented by governments to tackle COVID-19. Technologies such as facial recognition and phone tracking are being used to track the spread of the virus and monitor individuals under quarantine in order to save lives. Some individuals, such as the United Nations special rapporteur on the right to privacy, Joseph Cannataci, have expressed concerns that these systems that restrict people’s freedoms might remain in place in the long-term even after the pandemic has been tackled.
Privacy in South Africa
RICA has come under criticism for being misused by the South African intelligence and law enforcement agencies to spy on certain parties of interest. In 2016, the United Nations Human Rights Committee condemned the state of surveillance and the infringement of the right to privacy in South Africa. The organisation reported that communications surveillance activities were not transparent and were open to abuse.
In 2008, Right2Know Campaign released a report in which individuals involved in uncovering corruption and abuse of power were spied on by government agencies. Sam Sole, who was the director of the amaBhungane Centre for Investigative Journalism learned that the National Intelligence Agency had been tapping his phone to listen in on his conversations when he was investigating high profile corruption cases involving government officials in 2008. amaBhungane took the case to court and in September 2019 where the Gauteng High Court ruled that some parts of RICA are unconstitutional and invalid. The Court ruled that RICA failed to protect the public’s right to privacy and should notify the people under investigation if they are under surveillance.
visual: Zurika Raubenheimer