Privacy law

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1. INTRODUCTION

Privacy is one of the most essential and important aspect in every individual’s life considering both online and offline. Privacy laws have emerged drastically during the recent years due to expansion of internet services and professionalism used by many individuals around the globe. Privacy law is a concept that is sensitive to every individual, being a consumer or a business owner or even a person employed or none employed. Privacy is a major issue of concern since modernization has hit every individual or organization, thus violations of such rights have become a common ground for dispute and is necessary to keep a constant surveillance of violation of these rights With the emergence of electronic media, gadgets, online portals, use of information technology systems, privacy laws have been adopted to curb such violations on a high level around the globe.

Privacy law
AuthorDiya Bamba
ASSN38447
Published on15/02/2019
Co-Assn47369
EditorFaiyaz Khalid
Last Updates15/02/2019

Thus, privacy laws emerged has an independent enactment under the legal systems worldwide, which disables encroachment of privacy to individuals, organizations, groups, associations and so on. With the enactment of privacy laws one can beat such violations and encroachments Privacy law is the initial step towards privacy rights which are boundaries that allow admission able levels of intrusion, encroachment to individuals, organizations, societies which are legally recognized to curb the difficulties of privacy.[1]

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2. MEANING & DEFINITION

Privacy in general terms the meaning of privacy refers to someone’s right to keep personal information, personal matters and relationships under wraps. The legal definition of privacy law according to Black’s law dictionary states “PRIVACY” the right that determines the non intervention of secret surveillance and the protection of individual’s information. It is split into four categories namely:

1. Physical: an imposition whereby another individual is restricted from experiencing an individual or a situation.

2. Decisional: the imposition of a restriction that is exclusive to an entity.

3. Informational: the prevention of searching for unknown information.

4. Dispositional: the prevention of attempts made to get to know the state of mind of an individual.

To simplify the meaning of privacy law they consists of regulations or statue which protect a person’s right to be left alone and governs the release of personal information by another party.

According to Gillian Black, proposes that “privacy is the desire of an individual to be free of intrusion”

In Constitutional Law, “the right of people to make personal decisions regarding intimate matters” Under the Common Law, “the right of people to lead their lives in a manner that is reasonably secluded from public scrutiny, whether such scrutiny comes from a neighbor’s prying eyes, an investigator’s eavesdropping ears, or a news photographer’s intrusive camera” In Statutory Law “the right of people to be free from unwarranted drug testing and electronic surveillance”

With the above vivid definitions it can be understood what privacy law means and its general characteristics which a unique in nature and have a different perspective under various events under privacy [3] [4]

3. HISTORY

COLONIAL AMERICA

The concept of privacy began during the colonial period in America, where privacy was unprecedented, as stated by David Flaherty “solitude was readily available in Colonial America” the reason being that population in during the earlier times was very small that everybody knew everybody which made it impossible to not be under public surveillance.

During the early days of Colonial America there was limited protection against intrusion of privacy and the protection was limited to eavesdropping, listening through the walls, mischievous behavior so on, the common law at that time mainly sanctioned common scold that applied only to women. Semayen’s case one of the earliest cases of privacy in 1604 stated that “the house of everyone is to him as his castle and fortress”

Secondly, William Blackstone has also stated in the matter of privacy that the law has “so particular and tender a regard to the immunity of a ma’s house that is stiles it his castle, and will never suffer it to be violated with impunity “with revolutionary wars emerging immense changes had been made under privacy which lead to greater amendments in the following ages.


THE NINETEENTH CENTURY

The nineteenth century marked the beginning of Right to Privacy where a series of privacy issues started to grow giving rise to intrusion and exploitation of personal rights for which protection and governance had to be provided to each individual. Initially in the nineteenth century privacy was a vague concept during 1790 regulations began to evolve wherein governments would conduct census based on few questions and in the following years more questioned emerged which gave rise to privacy invasions to which Governments would establish certain regulations.

In 1728, passed a law that mails should not be opened, because this has been a major problem faced since the colonial times. Nevertheless, this problem remained even after passing a law, after the congress passed several laws protecting privacy of mail; in 1825 the congress enacted a statute to provide protection of mail. With this began statues against protection of privacy.

In 1825, the statute provided: “whoever takes any letter, postal cards, or packages out of any post office or any authorized depository for mail matter, or from any letter or mail carrier, …before it has been delivered to the person whom it was directed, with design to obstruct the correspondence, or to pry into business or secrets of another, or open, embezzles, or destroy the same, shall be fined or imprisoned “

In 1877, the congress held a fourth Amendment that prohibited Government officials from opening mails without a warrant. In 1844 after the invention of telegraphs, emerged a new invasion of privacy of tapping into the telegraphic communications, this persisted for a long time. After the civil war The Congress began to use telegrams as a mode of communication for investigation under the western union, due to tapping of t\such communications it was debated in the congress that the act of tapping was outrageous and violation to a person’s personal information, hence to curb this situation in the year 1880, a Bill was passed to protect telegrams, but the Bill ultimately failed to protect telegrams. Various legislations were passed for protection of telegrams.

THE FOURTH AND FIFTH AMENDMENT

The right to privacy has travelled from time to time regarding constitutional amendments which weren’t recognized in the early 1961 , during 1965 the United State government recognized ‘privacy” has a constitutional right through numerous Supreme Court judgments , the very first case which gave light to privacy was Griswold’s. Connecticut in the year 1965.

The case invalidated the prohibition of birth controls which was against privacy has it violated the right to marital law. This particular case supported feminism because it protected the privacy of the person without the intrusion of government in one’s own personal relationships. The constitutional rights provided liberty and freedom to live a life without any interference of governments and let individuals be free. Following the fourth amendment, the Fifth Amendment is associated to the Bill of Rights proposed by James Madison in the year 1789, which protected person’s accused of crimes under the American criminal justice system.

The Fifth Amendment was proposed on 25th September 1789, as a part of the original 12 provisions of the Bill of Rights and was later ratified on 15th December 1791 and became a part of the amendments conducted during this era.


LEGISLATION

After the success of constitutional remedies and statues supporting privacy in every walk of life , legislations framed by law makers at the centre and state level regulate financial institutions , governments and other institution to protect secret data to be revealed to the public or any unauthorized individual or organization. The legislations provide conditions under which employees are to be regulated according to the said legislation. In the year 1970 the Congress passed the Fair Credit Reporting Act to prevent unreasonable and careless invasion of consumer privacy In 1974 The Privacy Act was established for Fair Information Practice to protect, maintain the use of private information by the Federal Governments. Before the 1974 Act, in the year 1970 Fair Credit Reporting Act was enacted to protect financial data of individuals, the Act not only protects personal information of credit reports but also restricts data to be accessed by various users.

With all the amendments and legislations against limited use of personal data and intrusion, privacy laws began to establish a strong footing legally and enacted various laws and statues over the years a spread widely all over the world. [5]

4. SOURCES OF PRIVACY LAW

The sources of privacy law can be traced from the meaning of privacy. Privacy in general terms means “secrecy of personal information “being misused or leaked to defame one’s character without any authorization. The concepts under privacy laws form the basis of its source. The concepts are

• Right to be left alone • Limited access of data • State of privacy • Regulated use of information • Secrecy • Informational privacy • Data privacy

On the basis of the various versions of privacy protection, privacy laws are protected under legal systems which provide regulatory provisions and statues under which any violation with regard to privacy are controlled and guarded by laws. The sources of privacy law can be under the following heads:-

a) Constitutional protections The constitution is the pillar of every legal system, violation of the constitution is illegal which ultimately is a violation of rights, similarly, privacy laws in the United States are a part of the constitution during the fourth and fifth amendments.

b) Common law protection Common law refers to the law according which every court would pronounce a judgment provided under torts which form the basis of invasion of privacy. The following are the various torts under which a civil action against privacy is controlled:- • Unreasonable intrusion upon seclusion of another • Appropriation of another’s name for financial benefit • Unreasonable publicity given to another’s life • False publicity of another’s life

c) Statutory protection Statutory protection consists of exclusive Acts to curb privacy issues under various separate statues which protect very possible invasion of privacy through internet services, media and many other means through which privacy is infringed. In the U.S statutory provision provided various acts such as:- • Video Privacy Act • Fair Credit Reporting Act • Right To Financial Privacy Act • Electronic Communication Act • Children’s Online Privacy Protection Act

In India, the concept of privacy emerged during the 20th century, with initially very few privacy protection statues. The Information Technology Act focused on privacy protection and regulations which was later amended multiple times with the development of technology. As of recent times Data Protection Act governs privacy issues with regard to internet services, personal information protection.

5. NATURE OF PRIVACY LAW

Privacy laws have developed tremendously through decades and have now reached a point wherein the use of private law which was nonexistent years ago is a matter of concern and certain obligations conferred upon authorities and the public to preserve an individual’s right to be left alone and free from government interference. The nature of privacy laws has emerged has a main subject and it is the basis for personal data being protected under the legal system.

Privacy laws adopted by every country has a different procedure involved to protect personal information from being published to the public and hence the very nature of privacy laws lies in protecting unauthorized data , an individual’s personal life from being advertised , to protect any infringement of natural rights . privacy laws in today’s time has a major hold upon online services and data which are protected under privacy laws or data protection laws , which regulates the usage of internet services without any leaked information about a particular person or an organization. Privacy laws thus, protect illegal activities taking place in one’s life or with regards to internet services or portal systems to be regulated in order to discourage personal information from being misused by the government or any unauthorized person or organization. [6]


6. SCOPE OF PRIVACY LAWS

Moving ahead from the privacy laws that existed centuries ago have now been enacted under various sections of law, moving forward to privacy laws which have majorly impacted the digital services which are used from person to person for various activities via internet services. in today’s world the word “privacy” has a broad meaning has it differs from case to case when one’s right to personal life or personal data is infringed upon . Privacy laws thus protect any kind of data, information, and intrusion over an individual’s life without prior permission by any agent, government authorities or any third person who is unauthorized to commit such unethical acts. the scope of privacy laws are entirely based upon regulating , protecting and proving rights to various organizations and individuals from being exploited through the usage of personal data being leaked and also protect personal information to be misused in any possible way .

Therefore, privacy laws have enacted statues; laws in every walk of life, for instance infringement on any property without prior permission, a case of copyright can be regulated through Copyrights Act which protects any content to be copied from the original content to safe guard the originality of a particular work. Hence, privacy laws concentrate in providing protection on matters secretive in nature. Privacy laws enacts certain laws which allow certain data to be disclosed and procedures [7]


7. TYPES OF PRIVACY LAWS

Privacy laws are regulations set by a standard authorized institution to curb the issue of intrusion over privacy of personal information. Privacy laws are those laws which relate to an individual to be left free from any encroachment, scrutiny or intrusion in one’s daily life by the government or any other third party. Privacy matters have been dealt for decades and have protected issues of privacy such as contraception, birth control, abortion. After development of privacy acts over the years, legislative enactments have draw a line between private activities and activities allowed to be publicized. Modern privacy law has grown drastically with the growth of internet services, surfing, online transactions, e-mails, text messages content provided in portable devices.

Privacy laws are divided into two types:

General privacy laws

The general part of privacy laws deal with personal information of individuals which hinder the rights governed by the statues or enactments. For example abusive use of rights, copyright policies infringed, one’s personal information has been disclosed without permission. Laws like property laws, contractual laws, tortuous acts, etc are the branches which are classified under general laws of privacy. These are commonly shared bodies of civil laws. For instance Principle of good faith is looked upon as a general rule under any legal system, similarly upholding the spirit of common laws and the rights associated with them are the general laws of privacy which disclose, intrude or obtain personal information which becomes a civil wrong under law

Specific privacy laws

Specific privacy laws are those laws which deal with specific parts of laws which hinder privacy of individuals and are interdependent on the general laws , for instance a specific part of intellectual laws are dealt under special categories or sub – categories of that particular law. Thus, specific privacy laws regulate specific types of personal data to be leaked by unauthorized bodies. Specific laws are further classified with the recent developments of internet services and digital portal systems into:-

• Communication privacy laws • Financial privacy laws • Information privacy laws o • Data protection laws • Online privacy laws • Privacy at one’s home [8]


8. BRANCHES OF PRIVACY LAWS

Privacy is a concept which emerged under civil law has a private right given to every citizen in order to protect individuals from being exploited by misusing their right to privacy. The different types of branches have developed from various theories of what should be protected. According to the American legal system they are two major branches that govern privacy they are (a) Right to be left Alone (b) Control over Personal Information or informational privacy.

Under civil law the various branches of privacy are associated with Torts , Contractual laws , law of property , laws of succession , company law , certain aspects of commercial and social law , employment law, banking law, social security law etc .

The main branches of privacy law under tort law are considered and are as follows:-

• Intrusion on solitude on another , intrusion upon one’s solitude or private affair unreasonably

• Giving publicity to private facts , unreasonable publicity concerning the private of another by publishing private and personal information (a) highly offensive to a reasonable person , (b) which is not a legitimate information provided to the public.

• False light invasion of privacy , publicity which places a person to be wrong in the public’s eye

• Appropriation or misappropriation of a name or likeness of another for personal benefits or commercial purpose Therefore the basis of privacy is associated with tort law because it deals with one person intruding into another person’s life without consent for personal benefit by defaming, intruding into one’s personal information and data. [9]


9. PRIVACY LAWS IN DIFFERENT COUNTRIES

Privacy law was initially recognized has a private right of an individual to be free from any intrusion into another person’s personal life , but has times changed and development became major part of growth in many countries advancement and development gave rise to privacy invasion which hindered a large number of people all around the world . Privacy laws thus developed with the advancement of technology and the use of internet services which would allow a user to allow certain information to be public and certain data to be kept private . in order to protect such invasion each country with major developments adopted the privacy law which are also called privacy policy. According to recent studies 100 countries around the world have enacted comprehensive data protection laws and with development many other countries are striving to enact privacy laws. Privacy laws used in every website are different from each country because privacy laws are enacted differently to every website to which it belongs, the reason for such enactments is to improve information privacy and security. The following are a few countries to enact privacy laws they are as follows:-


ARGENTINA

The Argentina Personal Data Protection Act was enacted in October 2000, which applies to individuals as well as legal entities who operate exclusively for personal information from Argentina. Personal information is related to information regarding name, address, occupation etc. personal information however uses browser cookies to track the user activity, this is only allowed and legal to use if the user has given consent, in addition to this the user also has a right to delete information at any given time.


AUSTRALIA

Australia’s Privacy Principles (APP) is a privacy law which consists of 13 principles which are guidelines to manage personal information. These principles are stringent in keeping data transparent, which implies up-to-date privacy policies on the website to manage personal information. The current policy for privacy includes federal as well as state legislations on media and also provides criminal sanctions.


CANADA

Canada’s Personal Information Protection and Electronic Data Act (PIPEDA) provide an insight into how one should collect, store and use personal information of online users. The Act states the polices should be accessible to all users and the document must be easy to understand for the users to be protected under the Act. The act does not apply to non- commercial organizations and provincial governments.


COLUMBIA

The Columbia Regulatory Decree 1377, the providers are required to inform its users the reason for collection data which includes personal data to a limited extend. In Columbia it is illegal to obtain any kind of data without consent. The policy also includes the various methods and the purpose of data protection.


DENMARK

Denmark enacted the Act on Processing of Personal Data passed in the year 2000 and appointed the Danish Data Protection Agency to enforce privacy laws in the country. Under the provision, if any violation against privacy has been committed, the board issues a notice of enforcement or a ban on such activities. Like any other country Denmark also requires consent of its user before collecting any data and also permission to be given by the user to disclose information to a third party for digital marketing


FINLAND

In Finland, privacy law is enforced under, The Data Protection Act, which is considered to be the most basic right provided in Finland. The act emphasizes that if data is to be collected, one should provide adequate reasons for collection the data and also the purpose of using the data has to be clear, any other unauthorized usage would not be entertained under the Act. The user is also provided with a data file which consists of the processes involved in gathering data and the purpose. The database is limited to basic and contact information for personalized marketing or e-mail marketing


FRANCE

Data privacy in France is regulated under the Data Protection Act 1978; the act collects personal data for sending E-mails, or collecting any type of personal data which is used to identify a person. The Act was revised in the year 2004. In France the user has to give its consent to provide and collect personal data


GERMANY

Germany protects its privacy policy through the Federal Data Protection Act of 2001 that prohibits anyone from gathering personal information without the users consent, which means that the data is to be c9ollected directly from the user and is further not allowed to collect data from a third party. The information collected can be only used for a specific purpose mentioned in the policy. In Germany they are 16 different data protection agencies to enforce these laws.


INDIA

The Right to Privacy is a Fundamental right provided by the Constitution of India under Article 21 that provides to protect life and liberty to its citizens and also as a part of freedom guaranteed by Part III of the Constitution. In the year 2011, India passed new privacy policies that applied to companies and consumers. The Information Technology Act enacted for the purpose of protection privacy, provided websites to publish the privacy policies and accessible to the user for any kind of data. Like any other policy, the act requires to provide the purpose of collecting data, and also ensure security to protect personal data. In India sensitive data like passwords or financial data can only be obtained through consent of the user.


JAPAN

The Personal Information Protection Act was enacted in 2005 for the purpose of protecting privacy rights of individuals to protect their personal information from being used without authority or consent. The act defines Personal Information in broad manner which also extends to data present in the public directory. The law applies to business operators who hold personal information of many individuals.

NEW ZEALAND

The privacy Act of 1993, states that while collecting personal data, a person is allowed to seek any non public data directly from the individual from whom the information is to be gathered from. The user from whom the information is taken has to know why the information is being gathered and also the name of the person who collects the information. It is also mandatory that the information collected is granted by law. If any illegal activity is noted it would be under scrutiny to verify the collected data is in compliance with the privacy law.


THE PHILIPPINES

Philippines has been known for its strict laws on privacy, like any other Act the common procedures followed to obtain personal information is followed rigorously, in addition to the act there is a special act called the Republic Act No. 10173, according to this act, individuals are entitled to known the purpose of collecting personal data, and also the process of the data being processed, and information about the third party using the data.

UNITED STATES

The United States privacy laws are governed by the state, the law differs from state to state and each state has a different outlook on privacy laws. The strictness of the law is again decided state wise. The federal government does not absolutely regulate the privacy policies. In the U.S the Federal Trade commission (FTC) is in charge of regulating business privacy laws. The Children’s Online Privacy Protection Rule deals with websites that collect information from children under the age of 13 years. Likewise U.s adopted many other policies to protect privacy invasion

Therefore, they are many other major countries who have adopted policies to curb the issues relating to privacy laws. Privacy law is a very common phenomenon which existed through centuries and changed with rapid development, increase in population and to protect any form of misuse of rights conferred to every individual. Privacy laws in every country are more or less similar to one another, the only difference lies upon its strictness, sanctions and polices each country find fit in order to protect personal data from being used illegally for personal or financial gains. [10]


10. REFERENCES

https://definitions.uslegal.com/r/right-to-privacy/

https://thelawdictionary.org/privacy/

https://legal-dictionary.thefreedictionary.com/privacy

https://www.studocu.com/en/document/odisee-hub-kaho/principles-of-law/summaries/summary-the-major-branches-of-private-law/707532/view

https://en.wikipedia.org/wiki/Privacy_law

https://www.rgsl.edu.lv/uploads/research-papers-list/18/5-palasti-final.pdf

https://edri.org/evolution-concept-privacy-/

http://www.privacilla.org/business/privacytorts.html

http://www.kentlaw.edu/faculty/rwarner/classes/legalaspects/Privacy/sources_of_legal_protection_for_.htm

https://www.encyclopedia.com/management/encyclopedias-almanacs-transcripts-and-maps/privacy-privacy-laws-and-workplace-privacy
  1. https://definitions.uslegal.com/r/right-to-privacy/
  2. https://www.encyclopedia.com/management/encyclopedias-almanacs-transcripts-and-maps/privacy-privacy-laws-and-workplace-privacy
  3. https://thelawdictionary.org/privacy/
  4. https://legal-dictionary.thefreedictionary.com/privacy
  5. https://edri.org/evolution-concept-privacy-/
  6. http://www.kentlaw.edu/faculty/rwarner/classes/legalaspects/Privacy/sources_of_legal_protection_for_.htm
  7. http://www.privacilla.org/business/privacytorts.html
  8. https://en.wikipedia.org/wiki/Privacy_law
  9. https://www.studocu.com/en/document/odisee-hub-kaho/principles-of-law/summaries/summary-the-major-branches-of-private-law/707532/view
  10. https://www.rgsl.edu.lv/uploads/research-papers-list/18/5-palasti-final.pdf