Eleanor Finch
The right to privacy is not explicitly mentioned in the US Constitution, but it is considered a fundamental human right and is protected by various laws and statutes worldwide. In the US, the Supreme Court has recognised privacy as an outgrowth of protections for individual liberty, with the Fourteenth Amendment being used to extend the right to privacy in cases such as Roe v. Wade, Eisenstadt v. Baird, and Lawrence v. Texas. In Australia, the Privacy Act 1988 provides a degree of protection for individuals' personal information, while New Zealand's Privacy Act 2020 addresses the collection, storage, and handling of information. Russia's Constitution specifically mentions the right to privacy in Articles 23 and 24, and the country has implemented laws to protect personal data. While the concept of privacy may be simple to understand, defining it in a legal context is complex, and the right to privacy continues to evolve with technological advancements and societal changes.
| Characteristics | Values |
|---|---|
| Countries with a constitutional right to privacy | New Zealand, Russia |
| Countries without a constitutional right to privacy | Australia, United States |
| Privacy laws | Privacy Act 1988 (Australia), Privacy Act 2020 (New Zealand), Federal Law No. 152-FZ R (Russia) |
| Privacy rights in the US | Right to decisional privacy, right to informational privacy, right to privacy in the home, right to privacy in personal information |
| Supreme Court cases involving privacy rights | Roe v. Wade (1973), Eisenstadt v. Baird (1971), Lawrence v. Texas (2003), Stanley v. Georgia (1969), Federal Communications Commission v. Pacifica Foundation (1978), Cox Broadcasting Corp. v. Cohn (1975), Bartnicki v. Vopper (2001), Olmstead v. United States (1928), Griswold v. Connecticut (1965) |
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What You'll Learn
Privacy in the US Constitution
In 1965, the Supreme Court first formally identified "decisional privacy" as the right to independently control the most personal aspects of our lives and our bodies, deriving it from other explicit constitutional rights. For example, the First Amendment rights to freedom of speech and assembly allow people to privately decide what they say and with whom they associate. The Third and Fourth Amendments protect the sanctity of private homes, and the Fifth Amendment's guarantee against self-incrimination allows an accused person to keep information private. The Ninth Amendment also guarantees the right to privacy by reserving to the people any rights not named in the Bill of Rights.
The First Amendment protection of privacy is most robust when the invasion of privacy occurs in the home or in other places where an individual has a reasonable expectation of privacy. For instance, in Stanley v. Georgia (1969), the Court struck down a Georgia law prohibiting the possession of obscene materials in the home, citing the First Amendment.
Privacy rights are inherently intertwined with information technology, and the development of new communication technologies, including the Internet, has spurred considerations of our right to keep personal information private. Computers now capture vast amounts of data about individuals, and this information helps determine everything from credit ratings to advertising.
The right to privacy has been extended in various Supreme Court cases, including Eisenstadt v. Baird (1971) and Lawrence v. Texas (2003), which relied on the Fourteenth Amendment to extend the right to privacy to unmarried couples purchasing contraceptives and same-sex couples engaging in sexual conduct, respectively. In Roe v. Wade, the Court extended the right to privacy to encompass an individual's right to have an abortion, but this was later overturned in the Dobbs decision.
While privacy is not explicitly mentioned in the US Constitution, it is a concept that has been recognised and extended through various Supreme Court cases, deriving it from other explicit constitutional rights.
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Privacy in the Russian Constitution
The Russian Constitution of 1993 provides for the right to privacy, specifically in Articles 23 and 24. This right to privacy is further elaborated by a series of federal laws, such as the 2010 Law "On Providing Access to Information on the Activities of State Bodies and Bodies of Local Self-Government". This law grants citizens the right to request and receive information from governmental bodies and agencies.
Russian privacy laws are a rapidly developing area of legislation, with many laws enacted in 2005 and 2006, and amendments made as recently as 2021. The Federal Law on Personal Data (No. 152-FZ), implemented on July 27, 2006, is considered the backbone of Russian privacy laws. It requires data operators to take all necessary measures to protect personal data from unlawful or accidental access. The law also extends privacy to include personal and family secrets.
The Russian Criminal Code (No. 63-FZ) also regulates some aspects of individual privacy. For example, Article 137 imposes criminal liability for illegally collecting or spreading information about an individual's private life without their consent. Individuals can submit privacy infringement cases to local prosecutor's offices or law enforcement agencies, and may seek redress in the national courts. They may request injunctive relief and compensatory damages, and the relevant organization may be required to delete the information and destroy all tangible media copies to prevent further distribution.
The Federal Law on Information, Informational Technologies, and the Protection of Information (No. 149-FZ), implemented on July 13, 2015, also provides for a "right to be forgotten". This allows individuals to file a request to search engines to disable access to links with information about them.
Data protection laws in Russia apply to all data operators and processors, and the Personal Data Law protects "personal data", meaning any information that directly or indirectly concerns a natural person. Operators must notify the Federal Service for Supervision of Communications, Information Technology, and Mass Media (Roskomnadzor) of any data leaks affecting data subjects' rights.
Overall, the Russian Constitution and subsequent federal laws provide a framework for protecting the privacy rights of Russian citizens, with a particular focus on the protection of personal data.
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Privacy in the Australian Constitution
Privacy in Australia is primarily governed by the Privacy Act 1988 (Privacy Act), which sets out rules for the handling of personal information by federal government agencies and organisations with an annual turnover of more than $3 million. The Privacy Act covers the collection, use, storage, and disclosure of personal information, and provides individuals with rights to access and correct their own personal information. The Act is supported by the Privacy Regulation 2013 and the Privacy (Credit Reporting) Code 2014.
While the Privacy Act provides a framework for protecting privacy, there is no absolute right to privacy in Australian law. The Australian Law Reform Commission (ALRC) reviewed Australian privacy law in 2006 and found that there is no "precise definition of universal application" of privacy. Instead, privacy is affected and protected in limited ways by common law and a range of federal, state, and territorial laws.
The Privacy Act has been amended several times to strengthen privacy protections, most recently in November 2024 with the Privacy and Other Legislation Amendment Act 2024. This Act includes a framework for a Children's Online Privacy Code and introduces a new statutory tort for serious invasions of privacy.
In addition to the Privacy Act, other laws and regulations also impact privacy in Australia. For example, the Freedom of Information Act 1982 (FOI Act) has been amended to require consultation with individuals before disclosing documents about them. The Office of the Australian Information Commissioner (OAIC) is responsible for investigating breaches of privacy laws and providing information on privacy to individuals, businesses, and agencies.
While there is no explicit right to privacy in the Australian Constitution, the Privacy Act and other legislation provide a degree of protection for individuals' personal information and privacy. However, the rapid development of technology and the increasing use of mobile phones and the internet have also raised new challenges and concerns about the sufficiency of existing privacy laws to protect individuals' privacy.
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Privacy in the New Zealand Constitution
Privacy in New Zealand is governed by the Privacy Act of 2020, which outlines 13 privacy principles that dictate how agencies, organisations, and businesses can collect, store, use, and share personal information. The Act serves two main objectives: protecting an individual's right to privacy and personal information, and adhering to internationally recognised privacy standards. This includes the OECD Guidelines and the International Covenant on Civil and Political Rights. Notably, the Act applies not only to New Zealand-based agencies but also to international entities and individuals interacting with personal information within the country.
While New Zealand law does not explicitly recognise a right to privacy, it has a robust data protection regime that provides adequate data protection. This regime is underpinned by the Privacy Act, which empowers the Privacy Commissioner to issue codes of practice that become part of the law. These codes modify the Act's operation and set rules for specific industries, organisations, or types of personal information. The Commissioner can also issue compliance notices and make binding decisions on complaints about access to information.
In terms of data collection, the Act requires that personal information is collected only for a lawful purpose and with the individual's knowledge. Agencies and businesses must also ensure that they take reasonable steps to store and use personal information securely, including preventing unauthorised access by staff.
The Privacy Act of 2020 builds upon the previous Privacy Act of 1993, which established the legal framework for data protection in New Zealand. Over time, amendments have been made to strengthen the Privacy Commissioner's powers and enhance cross-border protections to ensure that personal information sent overseas is protected by comparable privacy standards.
Although privacy is not expressly mentioned in New Zealand's uncodified constitution, the country's common law has recognised privacy as a "silent value" from early on. Additionally, the judiciary has recently developed a tort of public disclosure of private facts, demonstrating an evolving legal landscape that increasingly values and protects individual privacy.
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The right to privacy in the digital age
The right to privacy is a complex and evolving issue, with differing interpretations and applications across various jurisdictions. While privacy may not be explicitly mentioned in constitutions, it is nonetheless recognised and protected through various legal mechanisms. In the digital age, privacy has taken on new dimensions, with technological advancements presenting both challenges and opportunities for safeguarding personal information and autonomy.
In the United States, the right to privacy is not explicitly enumerated in the Constitution. However, this does not imply a lack of privacy protections. The Supreme Court has, for over half a century, interpreted the Constitution as providing an implied right to privacy, derived from various amendments. The First Amendment, for instance, guarantees freedom of speech and assembly, allowing individuals to make private decisions about their associations and expressions. The Third and Fourth Amendments protect the sanctity of private homes, safeguarding against unreasonable searches and seizures. The Fifth Amendment's protection against self-incrimination further enables individuals to maintain privacy by choosing to withhold information.
The Fourteenth Amendment has also played a significant role in extending privacy rights. In Eisenstadt v. Baird (1971), the Supreme Court ruled that the right to privacy "inheres in the individual, not the marital couple," thereby extending the right to purchase contraceptives to unmarried couples. In Lawrence v. Texas (2003), the Court relied on the Fourteenth Amendment's guarantee of due process to extend privacy rights to same-sex couples, recognising their entitlement to respect for their private lives.
While the United States has an implied constitutional right to privacy, other countries have explicit protections enshrined in their laws. For example, New Zealand has committed to the Universal Declaration of Human Rights and ratified the International Covenant on Civil and Political Rights, both of which recognise a right to privacy. Additionally, New Zealand's Privacy Act of 2020 addresses the collection, storage, and handling of personal information. Similarly, the Russian Constitution, specifically Articles 23 and 24, guarantees its citizens the right to privacy, and subsequent laws have been enacted to protect personal data and family secrets.
In the digital age, privacy concerns have become increasingly prominent. The widespread use of the internet and emerging technologies has led to a vast collection of personal data, often by private companies, raising concerns about data protection and individual autonomy. This has spurred discussions and efforts to strengthen privacy laws and ensure that individuals have control over their personal information. For instance, the European Union's General Data Protection Regulation (GDPR) grants individuals greater control over their data and imposes stringent requirements on organisations handling personal data.
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Frequently asked questions
No, the word "privacy" does not appear in the US Constitution. However, the Supreme Court has interpreted the Constitution as protecting privacy as an outgrowth of protections for individual liberty.
In Griswold v. Connecticut (1965), Justice William O. Douglas ruled that privacy was part of the "penumbra" or shadow cast by the First, Third, Fourth, Fifth, and Ninth Amendments. For example, the Third and Fourth Amendments protect the sanctity of private homes, and the Fifth Amendment's guarantee against self-incrimination allows an accused person to keep information private.
Yes, the Supreme Court has recognised decisional privacy, or the right to independently control the most personal aspects of our lives and bodies. This includes the right to abortion, which was protected by the Constitution until Dobbs v. Jackson Women's Health Organization in 2022.
Yes, the Russian Constitution specifically in Articles 23 and 24, institutes the right to privacy for individual citizens. New Zealand also has a right to privacy, which is addressed by statute and common law.
Australia does not have a constitutional right to privacy. However, the Privacy Act 1988 provides a degree of protection over an individual's personally identifiable information and its usage by the government and large companies.
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