THE RIGHT TO PRIVACY AND FAMILY LIFE
The first pronouncement on the right to respect for privacy and family is set out in the Universal Declaration stipulating that ‘no-one shall be subjected to arbitrary interference with his privacy, family, home or correspondence’ and that ‘the family is the fundamental group unit of society entitled to protection by society and the state’. Today the right to respect for private and family life has come to encompass a wide range of areas. Privacy applies to a wide spectrum ranging from phone tapping to sexual orientation, while prominent issues regarding the right to respect for family include the rights of parents to contact with their children, remarriage and adoptions. This chapter examines....
a) the right to respect for private and family life
b) the right to marry and found a family.
A. *The right to respect for private and family life *
The right to respect for privacy mirrors the liberal concept of the individual’s freedom as a self-governing being as long as his/her actions do not interfere with the rights and freedoms of others. The right to privacy is the right to individual autonomy that is violated when states interfere with, penalise, or prohibit actions that essentially only concern the individual, such as not wearing safety equipment at work or committing suicide. States justify such interferences with the social costs of the actions prohibited, for instance to the health care system.
The right to privacy encompasses the right to protect a person’s intimacy, identity, name, gender, honour, dignity, appearance, feelings and sexual orientation. The right to privacy may be limited in the interests of others, under specific conditions, provided that the interference is not arbitrary or unlawful. People cannot be forced to change their appearance or name, for instance, nor can they be prohibited from changing their name or sex; however, in the interests of the rights of others they may, for example, be compelled to give biological samples for the determination of paternity. Another exception could be lawful counter-terrorism surveillance that necessarily operates in breach of privacy rights. Such a breach is acceptable as long as it accords with judicial and parliamentary oversight. The right to privacy extends to the home, the family and correspondence. The term family relates, for example, to blood ties, economic ties, marriage and adoption.
The right to the respect for privacy of the home has been interpreted to include place of business. A common interference with the privacy of correspondence has to do with secret surveillance and censorship of the correspondence of prisoners.
Finally, with the propagation of computer technology and automated data processing, states are obliged to ensure effective data protection as public authorities and commercial organisations are in a position to exploit personal data threatening the privacy of individuals.
B. The right to marry and found a family
Marriage and family are ancient institutions, recognised for centuries as the foundation of society. Like other aspects of society, family life and even the concept of ‘family’ has undergone rapid changes and evolution in recent times, resulting in varied regulations aiming at, for instance, guaranteeing equal rights of both spouses or partners in a relationship, when it comes to children and regulating adoptions. The state has an obligation to establish marriage and family as institutions under law, but at the same time to respect a person’s freedom to enter into marriage and the equal rights of both partners. For instance, an absolute ban on divorce based on religion violates the right to marry and prisoners cannot be prohibited to marry.
The family is entitled to special protection under a number of international standards
In regard to the state’s duty to protect the family, the African Commission has found that the forcible exile of political activists and expulsion of foreigners was in violation of the duties to protect and assist the family, as it forcibly broke up the family unit
In this context, obligations of states include registering children after birth, ensuring that they enjoy the right to a name and nationality, and that they are not subject to discrimination (for instance, those born out of wedlock). Children are to be protected against physical and moral dangers, social and family benefits shall be provided and mothers and children shall be guaranteed special protection. Migrant workers and their families also merit special protection.