The Right to Privacy and Reputation
HRA s.12 – Privacy and reputation
Everyone has the right—
(a) Not to have his or her privacy, family, home or correspondence interfered
with unlawfully or arbitrarily; and
(b) Not to have his or her reputation unlawfully attacked.
The right to privacy and reputation under s.12 of the ACT Human Rights Act
2004 (“HRA”) derives from Article 17 of the International Covenant on Civil
and Political Rights (ICCPR). Privacy is necessarily a relative concept, as
everyone lives in a society.1 The right to privacy protects against unwarranted
societal intrusion.
Scope of the right
The European Court of Human Rights has said of the related concept of
“private life” in the European Convention on Human Rights, 2 that it is “a
broad term not susceptible to exhaustive definition.”3 It “includes a person’s
physical and psychological integrity: the guarantee afforded by Article 8 of the
[European Convention on Human Rights] is primarily intended to ensure the
development, without outside interference, of the personality of each
individual in his relations with other human beings”.4
1
Human Rights Committee General Comment No.16, The right to respect of privacy, family,
home and correspondence, and protection of honour and reputation - Art. 17 (1988), at para 7.
2
The full title is the Convention for the Protection of Human Rights and Fundamental
Freedoms. Section 31 of the HRA states that international law, and the judgments of foreign
and international courts and tribunals, relevant to human rights may be considered in
interpreting the human right. Decisions of the European Court of Human Rights may
therefore be taken into account in the interpretation of the rights under the HRA.
3
Bensaid v United Kingdom 44599/98 [2001] ECHR 82, at para 47.
4
Botta v Italy (1998) 26 EHRR 241, at 257. The Court found that although there were some
positive obligations imposed by Article 8, these did not extend as far as ensuring that a
disabled person on holidays had ramp access to a private beach and access to a disabled toilet
on that beach, finding that the argument put by Botta concerned “interpersonal relations of
such broad and indeterminate scope that there [could] be no conceivable direct link between
the measures the State was urged to take … and the applicant’s private life.” Ibid, at 258.
1
The right to privacy includes the right to choose and change your name5 and
the right to choose the way you look and manner of dress. It has given
protection against
5
See Coeriel and Aurik v The Netherlands, Communication No. 453/1991, UN Doc
CCPR/C/52/D/453/1991 (1994).
2
construction on an ancestral burial ground.6 It also expressly protects a person’s reputation.
The right to privacy includes sexual rights – for instance, the right to choose a sexual identity and
orientation and to engage in consensual activities in the privacy of one’s home.7 The first
successful “communication” or complaint by an Australian to the Human Rights Committee (HRC)
concerned the now repealed prohibition on gay sex in Tasmania. The HRC found a violation of
Article 17 of the Covenant.8
The corresponding right to ‘private and family life’ under Article 8 of the European Convention on
Human Rights (ECHR) has proved an extremely broad and versatile human rights provision. It
covers a ‘right to establish relationships with other human beings.’9 For example, it includes a
family’s right to live together.10 The European Court of Human Rights found a violation in a case
where two children were removed from their parents on grounds that the latter had an intellectual
disability and were placed in separate foster families with little contact with their parents, despite
there being no signs of ill-treatment.11
The HRC’s jurisprudence as it relates to Australia and the right to privacy often concerns
immigration matters. In particular, the HRC has made three important finding concerning a
family’s right to live together in Australia in the context of immigration proceedings: Winata v.
Australia;12 Bakhtiyari v Australia;13 and Madafferi v Australia.14 In all three cases, the Committee
found that to remove one or more family members from Australia would constitute an arbitrary
interference with the family, and that Articles 17, 23 (the right to found a family) and 24 (protection
of children) of the ICCPR had been violated. The impact upon children appears to have been very
important in all these cases.15 In the Bakhtiyari case, there were additional factors, such as the
effect of the prolonged immigration detention on members of the family and the difficulties that
Mrs Bakhtiyari would face on her own if removed from Australia.16 In Madafferi, the mental health
of the father who was to be deported was of concern to the Committee.17 These factors explain the
6
See Francis Hopu and Tepoaitu Bessert v France, Communication No. 549/1993, UN Doc
CCPR/C/60/D/549/1993/Rev.1 (1997).
7
Dudgeon v United Kingdom (1982) 4 EHRR 149; Norris v Ireland (1991) 13 EHRR 186.
8
Toonen v Australia, Communication No. 488/1992, UN Doc CCPR/C/50/D/488/1992 (1994).
9
Mikulic v Croatia 53176/99 [2002] ECHR 27, at para 53. (Daughter wanted to establish identity of her father).
10
Kutzner v Germany 46544/9 [2002] ECHR 160.
11
Ibid.
12
Winata v Australia, Communication No. 930/2000, CCPR/C/72/D/930/2000 (2001).
13
Bakhtiyari v Australia, Communication No. 1069/2002, CCPR/C/79/D/1069/2002 (2003).
14
Madafferi v Australia, Communication No. 1011/2001, CCPR/C/81/D/1011/2001 (2004).
15
Winata v Australia, Communication No. 930/2000, CCPR/C/72/D/930/2000 (2001) at para 7.3.
16
Bakhtiyari v Australia, Communication No. 1069/2002, CCPR/C/79/D/1069/2002 (2003) at para 9.6.
3
marked difference in result as compared with previous cases involving individual communications
from other countries.18
Arbitrary or unlawful interference and proportionate limitations
The terms unlawful and arbitrary, used throughout the HR Act, mean that interference can only be
on the basis of law that is precise and circumscribed, and that does not give too much discretion to
authorities to authorize interference. “[E]ven interference provided for by law should be in
accordance with the provisions, aims and objectives of the Covenant and should be, in any event,
reasonable in the particular circumstances.”19
Article 17 of the ICCPR is not a right that includes a specific clause concerning limitations.
However, all rights within the HR Act are subject to the limitations clause in s. 28 of the Act.
According to s. 28, the right to privacy can only be limited by what is reasonable in a democratic
society, taking into account the rights and freedoms of others, such as, for instance, the right to free
expression under s.16.
Duty to legislate and to take positive measures
The HRC states that the right to privacy imposes some positive obligations on the state:
[Article 17 rights are] required to be guaranteed against all interferences and attacks whether they emanate from State
authorities or from natural or legal persons …
States are under an obligation to provide adequate legislation to that end. Provision must also be made for everyone
effectively to be able to protect himself against any unlawful attacks that do occur and to have an effective remedy
against those responsible.20
These positive obligations emanate in part from Article 17(2) of the ICCPR which expressly
provides that: ‘Everyone has the right to the protection of the law against … interference or attacks’
on privacy or reputation. Section 12 of the HRA does not contain this provision. It remains to be
seen whether this will be implied into s.12 as part of the protection from arbitrary interference.
However, it should be borne in mind that under Article 2 of the ICCPR, all rights must be
“respected and ensured” and that all rights may be thought of as carrying a tripartite level of
obligation. Rights must be “respected” by the State itself. They must also be “protected”, meaning
that the state has to put in place legislation and administrative machinery to protect individuals from
rights violations including those emanating from private actors, lest the State become responsible
for a human rights violation by virtue of a failure to prevent or punish private harms. Finally, rights
must be “fulfilled”, meaning they must be promoted (for example, through education) and even
provided to people, as in the case of food for those suffering the effects of famine or other natural
disaster. This approach, seen for example in many of the general comments and recommendations
of the bodies responsible for supervising human rights treaties, should also be adopted in the
interpretation of the rights within the Human Rights Act.
In the context of the European Convention on Human Rights, the duty on States to provide an
adequate legislative framework has been very important. For example, the European Court of
17
Madafferi v Australia, Communication No. 1011/2001, CCPR/C/81/D/1011/2001 (2004) at para 9.8.
18
Charles E. Stewart v. Canada, Communication No. 538/1993, UN Doc CCPR/C/58/D/538/1993 (1996).
19
UN Human Rights Committee General Comment No.16, The right to respect of privacy, family, home and
correspondence, and protection of honour and reputation - Art. 17, (1988), at para 4.
20
Ibid, at paras 1 and 11.
4
Human Rights found a violation of the right to privacy when a procedural defect in the law
prevented the initiation of criminal proceedings in relation to the sexual abuse of a young woman
with a disability.21 The Court stated that “[e]ffective deterrence is indispensable in this area and it
can be achieved only by criminal-law provisions; indeed, it is by such provisions that the matter is
normally regulated.”22
Similarly, the duty to take positive measures has been crucial to the effectiveness of Article 8 of the
ECHR. It has been used to establish a `custodial' and `protective' jurisdiction for vulnerable adults
that is “effectively indistinguishable from parens patriae or wardship jurisdictions in relation to
children.”23 It may, in exceptional circumstances, require governments to take positive measures to
ensure that persons with a disability have access to public places and can develop relations with
other people and the outside world.24
Environmental pollution
In the European jurisprudence, the right to privacy has extended to many different substantive
areas.25 For example, it has been accepted that the right to privacy extends to the right not to have
highly polluting facilities built close to residences, as well as the right to enjoy a home peacefully,
without intrusive noise or other pollution.26 Noise volumes exceeding permitted levels and at night
for several years were found to breach the right to privacy under the ECHR.27 However, in a House
of Lords’ case involving the failure by public authorities to prevent flooding by a back-flow of foul
water from a sewerage system, the claim did not succeed. A statutory scheme had been established
whereby the public authority responsible for sewerage services had to provide adequate drainage.
The public authority could take into account available resources in the face of the absolute right of
householders to connect to the water and sewerage service and an independent regulator had been
given the power to enforce this obligation. Convention rights could not be used to side-step the
statutory regime.28
21
X and Y v Netherlands (1986) 8 EHRR 235.
22
Ibid, at para 27.
23
Re SA, A local authority v MA [2005] EWHC 2942 (Fam); Re S (Adult Patient) (Inherent Jurisdiction: Family Life)
[2002] EWHC 2278 (Fam), at para 42.
24
Zehnalova v Czech Republic 38621/97 (2002) ECHR. (The application was declared inadmissible, however.)
25
See for example, Hatton v United Kingdom (2002) 34 EHRR 1. This case involved noise emanating from flights to
and from Heathrow airport that caused sleep deprivation, as well as “sleep prevention” (i.e., the noise meant that people
were unable to fall back to sleep once woken). The court found that the UK had not seriously attempted to evaluate
interferences with sleep and therefore could not weigh the (unquantified) benefit to the national economy with the
adverse impact on some individuals.
A breach of the right to privacy was established where the applicant’s residence was affected by industrial pollution
from a state plant. The threshold for a breach of the right to privacy had been attained since it could be established that
the concentration of toxins had exceeded the national maximum levels permitted for a significant period of time, and
(on the basis of indirect evidence and presumptions) that the applicant’s health had suffered as a result: Fadeyeva v
Russia 55723/00 [2005] ECHR 376.
26
27
Moreno Gomez v Spain 4143/02 [2004] ECHR 633.
28
Marcic v Thames Water Utilities Ltd [2004] 2 AC 42.
5
Information
The right to privacy protects personal information that might be gathered by authorities, for
example, on a database. As the HRC’s General Comment states:
[t]he gathering and holding of personal information on computers, data banks and other devices, whether by public
authorities or private individuals or bodies, must be regulated by law. Effective measures have to be taken by States to
ensure that information concerning a person’s private life does not reach the hands of persons who are not authorized by
law to receive, process and use it, and is never used for purposes incompatible with the Covenant. 29
The right to information privacy covers the right to protect information such as official records,
photographs, letters, diaries and electoral information,30 as well correspondence.31 The European
Court of Human Rights has recognised health as an area that is particularly privacy sensitive.32
Under ACT and Federal legislation, health information requires a higher degree of information
privacy than general records.33 There is also a right to access personal information held by a public
authority, and to request that incorrect information be corrected or eliminated.34 Furthermore, there
may be a duty of disclosure of certain non-personal information – for example, the public has a
right to know about dangers posed by environmental risks or other activities.35
Housing
Section 12 protects against arbitrary interference with one’s home. A home is any place in which a
person resides or, according to the HRC, a place where a person “carries out his usual
29
UN Human Rights Committee General Comment No.16, The right to respect of privacy, family, home and
correspondence, and protection of honour and reputation - Art. 17 (1988), at para 10.
30
In the United Kingdom, a breach of the right to privacy was found in the case where an electoral roll was sold to
commercial interests without allowing electors to object to their inclusion on the register: R v Wakefield Metropolitan
Council & Secretary of State for the Home Department ex parte Beetson Robertson [2002] 2 WLR 889.
31
UN Human Rights Committee General Comment No.16, The right to respect of privacy, family, home and
correspondence, and protection of honour and reputation - Art. 17, (1988), at para 8 states: ‘… article 17 requires that
the integrity and confidentiality of correspondence should be guaranteed de jure and de facto. Correspondence should
be delivered to the addressee without interception and without being opened or otherwise read. Surveillance, whether
electronic or otherwise, interceptions of telephonic, telegraphic and other forms of communication, wire-tapping and
recording of conversations should be prohibited.’
32
Z v Finland (1997) 25 EHRR 371; MS v Sweden (1999) 28 EHRR 313.
33
Health Records (Privacy and Access) Act 1997 (ACT); Privacy Act 1988 (Cth).
34
UN Human Rights Committee General Comment No.16, The right to respect of privacy, family, home and
correspondence, and protection of honour and reputation - Art. 17 (1988), at para 10. UN Human Rights Committee
General Comment No.16, The right to respect of privacy, family, home and correspondence, and protection of honour
and reputation - Art. 17 (1988), at para 10,‘[E]very individual should have the right to ascertain in an intelligible form,
whether, and if so, what personal data is stored in automatic data files, and for what purposes... to ascertain which
public authorises or private individuals or bodies control or may control their files. If such files contain incorrect
personal data or have been collected or processed contrary to the provisions of the law, every individual should have the
right to request rectification or elimination.’
35
See for example, Guerra and Others v Italy (1999) 26 EHRR 357. See also McGinley and Egan v United Kingdom
(1999) 27 EHRR 1 (no violation of Article 8 in this case); LCB v United Kingdom (1999) 27 EHRR 212 (Court did not
have to consider arguments concerning Article 8).
6
occupation.”36 As Conte states, this interpretation may not fit the literal definition of a home but is
consistent with a purposive interpretation of Article 17 of the ICCPR, given the “objective of
protecting the places in which a person is habitually present.”37 In the United Kingdom, courts have
said that care homes or other institutions for disabled or elderly people may be considered the
person’s home.38
Section 12 gives some protection of one’s existing home, but not a right to be provided with a
home, nor necessarily with housing of a particular kind.39 However, obligations may arise with
respect to certain vulnerable groups, particularly if eviction is contemplated. There have been
successful challenges to laws preventing gypsies and travellers on local authority sites from
enjoying the same security of tenure as mobile homes residents.40 Eviction decisions must take into
account the impact on the individual's health, the need for a stable education for any children, and
their ability to maintain their traditional way of life.41 The availability of a suitable alternative site is
a key factor.
Detention
Although imprisonment or other forms of detention may validly restrict the right to privacy, section
12 HRA still affords protection to persons in detention. For example, children in detention have
benefited from the protection afforded by the right to privacy.42 Adults have also benefited. For
example, the House of Lords has held that although searching prison cells is a legitimate action to
maintain prison security, a blanket policy of excluding prisoners from their cells when searching
through their legally privileged correspondence breaches the right to privacy. 43 In the case of a
mental health patient subjected to compulsory isolation in a hospital, the House of Lords noted that
the right to privacy may be engaged: it is “quite plain that, improperly used or continued, seclusion
can violate a patient’s Convention rights.....” 44
36
UN Human Rights Committee General Comment No.16, The right to respect of privacy, family, home and
correspondence, and protection of honour and reputation - Art. 17 (1988), at para 5.
Alex Conte, ‘Privacy, Honour and Reputation’, in Alex Conte, Scott Davidson and Richard Burchill (eds), Defining
Civil and Political Rights: the Jurisprudence of the United Nations Human Rights Committee (2004) 145, 156.
37
38
For example, see R v North and East Devon Health Authority ex parte Coughlan (1999) 2 CCLR 285. (Breaking a
promise that the person had a “home for life” at a particular institution would violate Article 8.)
39
In the European context, see Chapman v United Kingdom (2001) 33 EHRR 399. The English Court of Appeal has
accepted that a positive obligation on local authority landlords may arise under the right to respect for privacy to
maintain the condition of its social housing stock: Lee v Leeds City Council [2002] 1 WLR 1488. This is not an
unqualified obligation, but if, for example the house was unfit for human habitation or prejudicial to health, the
obligation would have been breached.
40
Connors v United Kingdom 66746/01 [2004] ECHR 223.
41
Chapman v United Kingdom (2001) 33 EHRR 399; South Buckinghamshire DC v Porter [2001] EWCA Civ 1549;
Basildon DC v Secretary of State for the Environment [2001] JPL 1184.
See, for example, the ‘Human Rights Audit of Quamby Youth Detention Centre’ ACT Human Rights Office, June
2005. See also R (Howard League for Penal Reform) v Secretary of State for the Home Dept [2002] EWHC 2497
(Admin).
42
43
R v Secretary of State for the Home Department, ex parte Daly [2001] 3 All ER 433.
44
R v Ashworth Hospital ex parte Munjaz [2005] UKHL 58, 26 (Lord Bingham). However, the patient was not
successful.
7
The law in this fact sheet is correct as of June 2006. If you have any comments concerning
this fact sheet, please contact us: email human.rights@act.gov.au; phone (02) 62052222.
8
What are the rights protected in the Human Rights Act 2004?
Section 8
Recognition and equality before the law
Section 9
Right to life
Section 10(1) Prohibition against torture and cruel, inhuman or degrading treatment
Section 10(2) Right to consent to medical treatment
Section 11
Protection of the family and children
Section 12
Protection of privacy and reputation
Section 13
Freedom of movement
Section 14
Freedom of thought, conscience, religion and belief
Section 15
Freedom of peaceful assembly and association
Section 16
Freedom of expression
Section 17
Right to participate in public life
Section 18
Right to liberty and security of the person
Section 19
Right to humane treatment when deprived of liberty
Section 20
Rights of children in the criminal process
Section 21
Right to a fair trial
Section 22
Rights in criminal proceedings
Section 23
Right to compensation for wrongful conviction
Section 24
Protection against double jeopardy
Section 25
Protection against retrospective criminal laws
Section 26
Freedom from forced work
Section 27
Rights of minorities
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WHERE TO GO FOR FURTHER INFORMATION
HUMAN RIGHTS COMMISSION
(02) 6205 2222
TTY: (02) 6205 1666
4th floor, 12 Moore Street, Civic
GPO Box 158
Canberra ACT 2601
www.hrc.act.gov.au
human.rights@act.gov.au
Legislation and Policy Branch
ACT Department of Justice and Community Safety
12 Moore Street
GPO Box 158
Canberra
ACT 2601
Tel: 6205 3310
USEFUL WEBSITES

ACT Human Rights Commission
www.hrc.act.gov.au

ACT Government's human rights website
http://www.justice.act.gov.au/

ACT Human Rights Act Research Project
http://acthra.anu.edu.au/

ACT Legislation Register
http://www.legislation.act.gov.au/
USEFUL PUBLICATIONS
Human rights: human lives – a handbook for public authorities (United Kingdom)
http://www.justice.gov.uk/guidance/humanrights.htm
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