THE RIGHT TO PRIVACY IN BANGLADESH

 

THE RIGHT TO PRIVACY IN BANGLADESH IN THE CONTEXT OF TECHNOLOGICAL ADVANCEMENT

Sadiya S. Silvee[1] and Sabrina Hasan[2]

 

ABSTRACT

Privacy is a necessity for any human to keep one’s individuality to one’s own. Thus, the right to privacy is provided to people through different statutory rules, norms of society and understanding among human beings. Over the time, ‘the right to privacy’ gets an undisputable status as an absolute human right. But, sitting in an era of internet, where technology has advanced in such a manner that it has brought a revolution in the manner of communication and information system. In this digital era of communication, one is ruining one’s privacy by own sharing behaviour without knowing the final fate of the information in this globally connected world. Moreover, as the information gets stored in the computer-based system, the chance of a threat to one’s privacy remains. In this context, the paper will explore whether being a country of 20th Century Bangladesh has considered “the right to privacy” as a fundamental right. In doing so, the paper will scrutinize how the right is protected under the national laws. In discussing the development of ‘the right to privacy” and technology, the paper will argue the importance of protecting the right to privacy. In this digital era, where the people have started sharing their information with relatively faceless institutions for use- it urges for the security of this personal information.

 

 

 

 

 

 

 

 

 

 

 

  1. INTRODUCTION

Privacy is an inalienable requirement of a human being which helps individuals to maintain their autonomy and individuality. The concept of ‘right to privacy’ has a certain abstract quality which makes it difficult to define as the law on right to privacy is attached to the protection of other rights, such as the right to property. Eventually, the legal recognition of the right to privacy as an independent right has come to be grounded as, ‘the right to home privacy’, ‘the right to the privacy of correspondence and other means of communication’ and ‘the right to privacy of private life’.  In fact, over time ‘the right to privacy’ has acquired its status as an inalienable human right.

At present, we are in a locus experiencing an information revolution, besides, have also begun to understand its repercussion. In the past few decades, we have witnessed an astounding transformation in the usage behaviour of the internet changes that have resulted in an unprecedented proliferation of records and data.[3]   Information that was captured in dim memories or fading scraps of paper in the analogue age is now preserved perpetually, in this digital age, in the minds of the computers in a form of vast databases with fertile fields of personal data. In fact, the new technological innovations along with the transformation in the usage behaviour of internet have accelerated the exchange of information between different stakeholders, resulting in a violation of ‘right to privacy’. However, the dilemma arises when the internet users, who are unaware 0of what purpose their information can be used[4], shares their personal information or giving access to relatively faceless institutions for use.[5] For an instant, the Facebook Privacy states, “we collect the content, communications and other information you provide when you use our Products, including when you sign up for an account, create or share content and message or communicate with others.”[6]  The recent case against Facebook is a competent example to understand how social media violates ‘the right to privacy’.

In the context, where 3.196 billion people are actively using social media which is more than 40% of the total population of the world, a well-defined law is required to be formulated concerning the protection of ‘the right to privacy’, in particular, ‘the right to privacy of private life’. In order to understand how law protects ‘the right to privacy of private life’ in light of these profound technological developments, such as social media, this study will examine how far the legislation of Bangladesh protects ‘the right to privacy of private life’ in social media. The article starts exploring the origins of the concept of privacy in the international context by a thorough review of the international treaties, international jurisprudence, individual state practice, and how the right to privacy is addressed as an individual right in such documents. Then, explores whether ‘right to privacy’ is a fundamental rights in Bangladesh and whether prevailing laws give adequate protection to the ‘right to privacy’.In doing so the paper advocates that even though Bangladesh has enacted different laws and policies, they lack the legal institutional framework to the right to protect the privacy of an individual.

 

  1. THE ORIGIN OF RIGHT TO PRIVACY

 

  1. The Right of Privacy as a Concept in the early centuries

The Right to privacy is not a new phenomenon; however, in this digital era, it has become a contentious issue, mostly, because of the predicament to protect the right in this digital era. Although, the ‘fourth amendment of the U.S Constitution[7]’ is considered as the origin of the concept of right to privacy, but the references to the concept are also be found in different religious and ancient legal codes, such as the Bible,[8] the Qur’an,[9] Jewish law,[10]the Code of Hammurabi[11], and ancient China[12]. In fact, numerous renowned scholars have also addressed the concept, not explicitly but implicitly, in their works.

In 1791 the concept stepped in constitution when James Madison addressed it as a right in the ‘fourth amendment of the U.S Constitution,[13] collectively known as Bill of Rights[14]. Later in 1801, addressing the concept Thomas Jefferson stated, “Our rulers can have no authority over such natural rights only as we have submitted to them.”[15] Under Thomas Jefferson’s natural law theory, the right to privacy is grounded in natural law resulting from humans’ ability to reason. [16]The concept of “right to privacy”, in very early times, was drowning in the debate to draw a distinction between the public realms of governmental authority as opposed to the private realm.  But from time to time new dimensions emerged in the debate and concept started getting recognition in constitutions which made the concept apparent. Belgium constitution of 1831[17] has adopted the concept in the similar pattern as in the ‘fourth amendment of the U.S Constitution’. In 1837, Justice Thomas Cooley in his work “A Treatise on the Law of Torts or the Wrongs Which Arise Independently of Contract”[18] has endorsed the concept of ‘right to privacy’ as ‘the right to be alone.’[19]Although, right to privacy was not explicitly recognized by then, however, pertinent facts were raised before the courts and tribunal[20] as a demand for home privacy “to be secure against unreasonable searches and seizures[21].”

In 1857, the concept had made its place in the Constitution of Mexico[22] quite in the similar pattern as in Belgium constitution of 1831[23] . However, the Constitution of Luxembourg, 1868, has taken a different stand by stating, ‘the home is inviolable. No domiciliary visit may be made exception cases and according to the procedure laid down by the law.’[24]By the end of the 19th century the concept has made its place in many constitutions, but not explicitly.

Although in the 19th century the right to privacy was acknowledged by numerous scholars, but the 20th century era of Right to privacy began perceiving that the concept of privacy and the right to privacy are associated and without a concrete way to conceptualize privacy, it would be impossible to delineate a legal protection for the right to privacy.

In Olmstead vs. United States[25], while reviewing ‘whether the use of wiretapped private telephone conversations, obtained by federal agents without judicial approval and subsequently used as evidence, constituted a violation of the defendant’s rights provided by the Fourth and Fifth Amendments’, Associate Justice Louis Brandeis wrote a dissenting opinion addressing the right to privacy . He stated ‘the right to be alone’[26]as “the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.”[27]Although Chief Justice Taft did not acknowledge the right to privacy in Olmstead vs. United States[28], it made its place as a codified human rights in American Declaration of the Rights and Duties of Man (hereinafter Bogota Declaration)[29]. [30]

The right got strengthened its grounds when it got recognition internationally as one of the human rights under Article 12 of the Universal Declaration of Human Rights (hereinafter UDHR)[31].[32] The provision of right to privacy was also adopted in Article 8 of the European Convention on Human Rights (hereinafter ECHR).[33]However, the courts and tribunal have not acknowledged the right explicitly, but starting in the 1960s, the topic of privacy received steadily increasing attention when the courts have chosen to limit the ambit of right to privacy within ‘constitutionally protected areas’[34].

In 1964, journalist Vance Packard in his book The Naked Society stated that privacy was rapidly “evaporating.”[35] That same year, Myron Brenton in his book titled, The Privacy Invaders, stated, “A couple of generations hence, will some automated society look upon privacy with the same air of amused nostalgia we now reserve for, say, elaborate eighteenth-century drawing room manners?”[36] Later in 1966, the provision on privacy was also adopted in the International Covenant on Civil and Political Rights (hereinafter ICCPR)[37].

After the right to privacy has gained its codified status as human rights, in Katz vs. United States[38]the court has, for the first time, acknowledge the right to privacy by stating,

“Telephone booth is an area where, like a home, and unlike a field, a person has a constitutionally protected reasonable expectation of[..] (b) that electronic as well as physical intrusion into a place that is in this sense private may constitute a violation of the Fourth Amendment; and (c) that an invasion of a constitutionally protected area by federal authorities is as the Court has long held, presumptively unreasonable in the absence of a search warrant.”[39]

  1. The Right to Privacy in the 21st Century

With time the capacity, power, speed, and impact of information technology has been, and continues, accelerating rapidly that ‘the adaptive legislative and judicial process has failed to address digital privacy problems adequately.’[40] Hence, with such advancements in this 21st century era of Right to privacy began with increase in the risks to privacy.[41] Subsequently, the privacy laws were constantly revised in tandem with technology to meet the privacy threats embodied in new technologies.[42]The ‘digital revolution’ in this 21st century has evolved in such an unpredictable speed that ‘even information that is superficial or incomplete can be quite useful in obtaining more data about individuals’[43]. In other words it can be said that in this 21st century “information breeds information.”[44]Hence, it can be said that different aspects of the right to privacy such as right to, ‘maintain secrecy – the concealment of certain matters from others, control over personal information – the ability to exercise control over information about oneself[45], personhood – the protection of one’s personality, individuality, and dignity, and intimacy – control over, or limited access to, one’s intimate relationships or aspects of life’[46]have become vulnerable.

In this modern age of the right to privacy where the amount of digital information generated got such extraordinary[47] that ‘every interaction with the Internet and with social networks, every credit card transaction, every bank withdrawal, and every magazine subscription is recorded digitally and linked to specific users’.[48] This digital development have affected the right to privacy greatly, firstly, the increase in data creation resulted in collection of vast amounts of personal data generated by the electronic recording of almost every transaction; secondly, the globalization of the data market and the ability of anyone to collate and examine the data; and lastly, the lack of the types of control mechanisms for digital data to stay protect. [49]Interestingly, in the 20th century era of the right to privacy checking letters[50]or wiretapping telephonic conversation[51] was considered as violation of right, however, in this 21st century, where information was are easily accessible[52] and once collected can be sent instantly and cheaply around the globe,[53]recording information such as credit card transaction, interaction with the Internet and with social networks are not considered as violation of the right to privacy  of private life and correspondence and communication.

Under the traditional view, privacy was considered as violation by the invasive actions of particular wrongdoers who cause direct injury to the victim as such that the victim experiences embarrassment, mental distress, or harm to their reputations. In Sharda vs. Dharmpal[54]the Indian Supreme Court defined ‘right to privacy’ as “the state of being free from intrusion or disturbance in one’s private life or affairs”.[55]However, now the internet users, who are unaware for what purpose their information is being used[56], do not consider sharing personal information or giving access to intruders in their private life by sharing personal information as violation of their right to privacy. Here, it is important to quote Aristotle’s argument in order to portrait the present picture of the right to privacy. Aristotle, in his book title Politics, argued, ‘the owner of a house[privacy] is responsible for admitting into it whom he wishes and for introducing into it any one whom he does not trust; but the man who deposits any property in a bath[public] cannot prevent anyone from coming in, nor can he prevent him, when he has entered from placing his garments next to his own when he has stripped himself.’[57] He also argued, ‘therefore, the lawgiver has prescribed not very heavy penalties to help the man who of his own free will and by his own mistake has admitted the thief to his house[privacy], but has clearly fixed heavy penalties for theft [sic: the].’[58]As the world of social media exists regardless of frontier, hence, the effect of violation of one’s right to privacy becomes obnoxious. Therefore, ensuring right to privacy in this 21st century becomes a challenge for the legislatures.

 

  • OVERVIEW OF PROTECTING THE RIGHT TO PRIVACY IN BANGLADESH

 

  1. Protection of Right to Privacy Under the Constitution of Bangladesh

Among the certain fundamental rights of the citizens of the People’s Republic of Bangladesh, the right to privacy is one of such rights. Several provisions under Part III of the Constitution of the People’s Republic of Bangladesh specify the fundamental rights of the citizens of the country. However, there is no such provision which directly dictates the right to privacy as a fundamental right. Here the question arises regarding the status of right to privacy whether the right is fundamental under the constitution or not.  Nonetheless, Article 43 of the Constitution of Bangladesh has recognized ‘the right to privacy’ by stating, ‘every citizen shall have the right, subject to any reasonable restrictions imposed by law in the interests of the security of the State, public order, public morality or public health – (a) to be secured in his home against entry, search and seizure; and b) to the privacy of his correspondence and other means of communication.’ As Article 43 falls in Part III of the Constitution which embodies Fundamental Rights protected under Article 26 of the Constitution, hence, the rights under article 43 are fundamental rights.

When we analyse sub-article (a) of Article 43 of the Constitution of Bangladesh which states,  ‘every citizen shall have the right to be secured in his home against entry, search and seizure’ then we can perceive its similarity with the provision of the ‘Fourth amendment of the U.S Constitution’, Article 16 of the Constitution of Belgium [59], Article 15 of the Constitution of Luxembourg, 1868[60], Article 29 of the Constitution of Moldova[61]where the word “house” was used to referred as the ‘privacy protected zone’ that entitles a person to have the right “to be secure against unreasonable searches and seizures[62].” Hence, it can be said that this provision resembles the 19th century old concept of ‘right to privacy’ – ‘the right to home privacy’ which was influenced by the maxim ‘every man’s home is his castle’.

Furthermore, sub-article (b) of Article 43 of the Constitution of Bangladesh states ‘every citizen shall have the right to the privacy of his correspondence and other means of communication’. Here, the right to the privacy of correspondence and other means of communication means privacy of letters, telegrams and other postal dispatches, as well as of telephone calls and other legal means of communication. In fact, this is the only provision under the Constitution where the word “privacy” is specifically mentioned irrespective of the wordings “right to privacy” as the subset of privacy of correspondence and other means of communication.

Similar provisions are also found in the constitutions of Germany[63], Kuwait[64], Guinea-Bissau[65], Gabon[66], and Ethiopia[67]and so on. Studying these constitutions demonstrates that the right to privacy of correspondence and other means of communication were seen as a separate right from the right to privacy of private life since the 20th century.

From our scrutiny to understand our rights under Article 43 of the Constitution of Bangladesh, we perceive that the right to privacy is ensured as a fundamental right in our constitution but under two ‘protected zones’. In other words, the citizens of Bangladesh have two ‘privacy protected zone[68]’- firstly, Home Privacy and secondly, Privacy of Correspondence and Communication. Unlike, Israel,[69] Hungary[70], Greece[71], Georgia[72] Nepal[73], our constitution has not considered ‘Private Life’ within the ‘privacy protected zone’.

One might argue that ‘the right to home privacy’ and ‘the right to the privacy of correspondence and other means of communication’ includes ‘the right to privacy of private life’. However, when we perusal Article 12 of the UDHR[74] along with Article 8 of the ECHR[75]  and Article 17 of the ICCPR[76], it accords a different understanding. Perusing UDHR along with ECHR and ICCPR we discern that, these international human right instruments have considered right to privacy in three different facet, the right privacy of private life’, the right to home privacy’ and ‘the right to the privacy of correspondence’. Though, the Constitution of Bangladesh has not ensured ‘the right privacy of private life’, but by protecting ‘the right to privacy of correspondence and other means of communication’, it  has implicitly protected our emails and text messages on social media providing us ‘e-privacy’ over our ‘e-communication’ .

Now, the emerging question is whether the citizen of Bangladesh has ‘the right to privacy of private life’? In this regard, the landmark judgement of Supreme Court of India in Justice K. S. Puttaswamy (Retd) and Anrvs Union Of India And Ors[77] can guide us[78]as our constitution has adopted a similar provision[79].

  1. Laws Prevailing In Support of the Right To Privacy Of Private Life in Bangladesh

Apart from the constitutional identification of ‘the right to home privacy’ and ‘the right to the privacy of his correspondence and other means of communication’ there are certain national laws which recognized these rights of the citizen. Under sections 405, 407, 408 and 409 of the Penal Code, 1860, if a person dishonestly passes trade secrets of a business or information shall be subject to the criminal offences. Sections 122, 124, 126, 127 and 129 of the Evidence Act 1872 also recognize the right to privacy regarding disclosure of information without consent or authorisation. Additionally, the Code of Criminal Procedure, 1898 and the Code of Civil procedure, 1908 have also adopted provisions relating to privacy. Under section 47 of the Criminal Procedure Code imposes restrictions on police officers to enter into any house without proper permission. Moreover, section 132 under the Code of Civil Procedure, 1908 allows a pardanasin lady to be exempted from the in person attendance in the court.

However, as the Constitution of Bangladesh does not implicitly acknowledge ‘the right to privacy of private life’ our legislatures have not enacted any particular legislation for the protection of personal data, however, enacted a few protecting the ‘e-privacy’ under ‘e-communication’. Nonetheless, the protection of ‘the right to privacy of private life’ can be procured under some existing legislation and also by referring to ratio decidendi and obiter dictum from different legal systems.

  1. Digital Security Act, 2018

With the emerging threat and raising concern regarding the privacy of private life and personal information as well as the state security issues, the Bill of Digital Security Act, 2018[80] was enacted. The proposed Bill has identified some specified crimes which include the prohibited acts of hacking, computer spying, and so on.

Section 18 of the Bills prohibits illegal access to any computer, digital device, and computer system to protect the privacy of the information. Similarly, Section 26, considering the protection of the personal information of any individual, states ‘if a person accesses or uses or transfers any ‘contact information’ of any other person without the permission or authorisation then the wrongdoer will be guilty under the section.’ The illustration of the section defines the ‘contact information’ as information relating to direct or indirect individual identity which detects the person including name, picture, address, birth date, parents name, signature, national identity card, passport number, bank account number, TIN number, credit or debit card number, voice print, retina image, iris image, DNA profile, security questions or any other personal information which is easily accessible on techno media.

In addition to the above, section 29 of the proposed Bill prohibits the defamatory activities as mentioned under section 499 of the Penal Code using website or any electronic device than the person will be guilty under the section. Besides, the hacking activities have also been prohibited under section 34 of the proposed Bill. Summing up the proposed Digital Security Bill, it can be said that the aims of the enactment of Digital Security Act 2018 include the protection of information of the state, any public or private organisation or any individual, accessible through digital media or devices which will protect the right to privacy.

  1. The Information and Communication Technology (ICT) Act, 2006

In the era of ‘digital revolution’, where the information is stored in a form of computerized data ‘The Information and Communication Technology (ICT) Act, 2006’ is a preventive and precautionary approach towards ensuring the ‘right to privacy of private life’. Here is it important to understand the notion ‘private life’ in the eye of law. In the X vs. Iceland[81], the European Commission on Human Rights stated that,

‘‘the right to respect for “private life” is the right to privacy, the right to live as far as one wishes, protected from publicity [?] however, the right to respect for private life does not end there. It comprises also, to a certain degree, the right to establish and develop relationships with other human beings especially in the emotional field, for the development and fulfilment of one’s own personality.’’

Furthermore,  a much elaborate meaning of the notion ‘private life’ can be obtain from P.G. & J.H. v. United Kingdom[82] where the Court stated,

“Private-life considerations may arise, however, once any systematic or permanent record comes into existence of such material from the public domain …. The Court has referred in this context to the Council of Europe’s Convention … for the protection of individuals with regard to automatic processing of personal data … whose purpose is “to secure in the territory of each Party for every individual.., respect for his… right to privacy, with regard to automatic processing of personal data relating to him”, such data being defined as “any information relating to an identified or identifiable individual.”[83]

Accordingly, we argue that the notion ‘private life’ does not only contain personal affairs, rather it also contains ‘any information’ even an individual’s medical record, gender identification and so on[84].Hence, whenever any information of an individual is used in an unhealthy manner, it causes violation of the ‘right to privacy of private life’ of that individual. Although the Information and Communication Technology (ICT) Act, 2006 has not explicitly addressed the ‘right to privacy of private life’, it has adopted safeguard provision such as Section 30, 54 and 57 through which one can be prevented from invading into one’s ‘private life’ on social media.

  1. The Right to Information Act, 2009

Considering ‘the Right to Information’ as an inalienable part of freedom of thought, conscience and speech the legislatures Bangladesh have enacted ‘The Right to Information Act, 2009’.The Act does not acknowledge the right to privacy, however, in Section 7 sub-section (h) and (i) it has ensured the protection of ‘right to privacy of private life’ by stating, ‘Notwithstanding anything contained in any other provisions of this Act, no authority shall be bound to provide with the following information, namely- [..] (h) Any such information that may, if disclosed, offend the privacy of the personal life of an individual; (i) any such information that may, if disclosed, endanger the life or physical safety of any person.  Although, nowhere in the Act it includes the ‘right to privacy of private life’, the Act can still be used to protect the personal data if disclosed by any authority, including ‘any organization, statutory body or institution, and any private organisation or institution run by government or foreign aid’.[85]

 

  1. PRIVACY EXCEPTIONS OR INFRINGEMENT OF THE RIGHT TO PRIVACY BY SOCIAL MEDIA?

It is apparent that social media is rapidly obtaining popularity, and, at the same time, creating an information revolution where it is challenging to keep track of how information is collected and shared. Generally, all social media emerged with certain ‘exceptions of privacy’[86] which allows its users with a perception of security that is only friends and other authorized users can view their social media updates. In addition, social media companies will protect their online information and not share personal data with any third party. The emerging question here is, whether the social media companies are breaching the trust of their users.

Ideally, social media platform or any other website hosted on the internet is a third-party platform for a typical user. Because, the web server has all the data, records, history of any user’s activity in their server in one form or another. In other words, every move a user makes online through computers, smartphones, and tablets can become information collected, stored, and shared. As for instant, Google.com, the most used search engine has the entire track whatever one typing or searching on their server[87]. In this digital era, this sort of data is becoming more and more useful and tradable. Hence, firms like Cambridge Analytica evolved. The case against Facebook can give a clear picture.  It is alleged that Facebook harvested millions of user profile and sell it to a third party data analytics firm for using it purposefully[88].

This sort of vulnerability increased in exponential scale when it comes to the use of Smartphones. As per the discussion so far, most of the users are found to use social media platforms through smartphones. For using smoothly, all the social media platform providers are providing their compatible applications for smartphones. Initially, when any user installs an application on their phone, the app asks for permission of using different service like camera, contact, and other sensor provided by the smartphone. In earlier versions, the user cannot install the application even if one of the permission is denied. However, in the current version, these apps allow installing even if some of the permission is not enabled. After installing any application, mostly an ordinary user doesn’t worry much about the authorization and gives all the required access in the name of permission. The free apps on the Google Play store and App store sometimes make money only by selling the personal information captured from the user’s smartphone.[89]

A research analysis conducted by Juniper networks states that free mobile applications are like to use user location 401% and address book 314% more than paid apps[90].In 2017, a customized keyboard app found to be collecting personal information from the users and storing it on an unsecured database without even user permission[91]. In another study conducted by German researchers claimed that, the marketing companies are adding ultrasonic sound in their advertisement and embedding hidden codes in the apps to record those ultrasonic sound to incorporate these with the location to determine which ads to show for how much of time[92]. A more recent study conducted by academicians of North-eastern University claims that, thousands of apps are activating microphone, camera etc. without user’s permission or knowledge. Moreover, third-party libraries of these apps are capturing and uploading screenshots and videos without any notification to the user or permission from the user[93]. From these studies, it can be stated firmly that the usage of different mobile apps is too vulnerable to share private information and is applicable to social media provider apps as well.

Though Bangladesh has not yet faced any claims regarding data selling but there are several reports of personal attacks through fake profiles. The cybercrimes in social media has increased in Bangladesh over times. The main victims of these types of social cybercrimes are women, mostly aged between18 to 25. Until April 2017, 666 cybercrimes were reported since 2016[94]. Not only personal attack through publishing compromised contents but also cyber radicalism has seen a spike in recent times. As the content generated over the Internet is from different types of social media, hence, it has become a tool for diverting youth towards extremism in different forms e.g., Religious, Political or Nationalist.[95]

  1. CONCLUSION

We are living in the era where the right to privacy is crucial. This paper has argued, in the era of globalization and the advancement of modern technologies, the privacy, not only, of the state but the individual citizen is at stake. As the online platforms of social media, as well as the different service providers, are becoming the part of daily lives in this digital era, so it becomes a need of the hour to formulate a personal privacy law based on digital security laws. Privacy is protected even in telephone booths or postal mails, but in the online global village era, these modes of communications are transformed in e-forms. So it is essential to protect the privacy, as earlier, in e-form also. Now-a-days, official emails, applications even payment details are shared through different e-servers of online social media or mail servers. Important and private details are now shared in this vulnerable medium named social media. Any sort of infringement or breaching of these data needs to be protected by enforcing strong and strict e-privacy rules. Nevertheless, domestic legislation of Bangladesh falls short from acknowledging ‘the right to privacy’ in any medium. Therefore, it is recommended that ‘the right to privacy’ should be acknowledged and protected even in social media with the utmost gravity under the domestic legislation.

 

[1] Sadiya S. Silvee, LL.M and LL.B (Hons.) (Green University of Bangladesh), is a Research Assistant (Law), Bangladesh Institute of Law and International Affairs (BILIA). She is also associated with Centre for International Sustainable Development Law (CISDL) under McGill University as a Legal Researcher.

[2] Sabrina Hasan, LLB (University of London, UK), PGDIR and MSS specialized with Victimology and Restorative Justice (University of Dhaka), LLM in Maritime Law (Bangabandhu Sheikh Mujibur Rahman Maritime University), is a PhD fellow at Xiamen University, China.

[3] Daniel J. Solove, The Digital Person Technology and Privacy in the Information Age (New York University Press, 2004)

[4] Daniel J. Solove, Privacy and Power: Computer Databases and Metaphors for Information Privacy (2001) 53 Stanford Law Review pp. 1393-1394

[5] U.S. Department of Health, Education, and Welfare, Records, Computers, and the Rights of Citizens Report of the Secretary’s Advisory Comm. on Automated Personal Data Systems (OHEW Publication 1973) available at: https://www.justice.gov/opcl/docs/rec-com-rights.pdf [ accessed on 24/07/2018]

[6] Facebook, About Privacy, available at: https://www.facebook.com/about/privacy [ accessed on 29/07/2018]

[7] “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”Fourth amendment of the U.S Constitution (1791).

[8] Richard Hixson, Privacy in a Public Society: Human Rights in Conflict (1sted, Oxford University Press 1987). See also, Barrington Moore, Privacy: Studies in Social and Cultural History (1sted, Routledge1984).

[9]Volume 1, Book 10, Number 509 (Sahih Bukhari); Book 020, Number 4727 (Sahih Muslim); Book 31, Number 4003 (Sunan Abu Dawud).

[10]See Jeffrey Rosen, The Unwanted Gaze: The Destruction of Privacy in America( 1sted, Vintage Books 2000).

[11]The Code of Hammurabi is a Babylonian law code dating back to about 1772 BC which details a set of principles meant to guide citizens of Babylonia with various activities such as agriculture, commerce, land rights, and contractual agreements. Article 21 of the Code of Hammurabi states: “[i]f a man makes a breach into a house, one shall kill him in front of the breach and bury him in it.” Article 21, Code of Hammurabi, 1750-1700 B.C. quoted in Nelson B. Lasson, The History of Development of the Fourth Amendment to the United States Constitution, 14-15, n. 5 (Johns Hopkins Press, 1937).

[12]See Barrington Moore, Privacy: Studies in Social and Cultural History (1st ed, Routledge 1984).; “Privacy was protected, to some extent, in ancient China and an awareness of privacy may be found in the Warring States Period, referring to the era of about 475 BC to 221 BC”. Cao Jingchun, Protecting the Right to Privacy in China(October 2005) Vict. U. Wellington L. Rev. 645, 646-47.

[13] “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”Fourth amendment of the U.S Constitution (1791).

[14] Although 12 amendments were originally proposed in 1789, the 10 that were ratified became the Bill of Rights in 1791.

[15] Thomas Jefferson, Notes on the State of Virginia in Jefferson (David Carlisle 1801); See also, George Tucker, The Life of Thomas Jefferson, Third President of the United States: With Parts of His Correspondence Never Before Published, and Notices of His Opinions on Questions of Civil Government, National Policy, and Constitutional Law (2 vol. Carey, Lea & Blanchard, 1837)

[16] “Such universally recognized principles of conduct which have a basis in elementary truths concerning human beings, their natural environment, and aims, may be considered the minimum content of Natural law.” H.L.A. Hart, The Concept of Law  (2nd ed. Clarendon Press 1994).

[17] ‘Article 16: One’s home is inviolable; no house search may take place except in the cases provided for by the law and in the form prescribed by the law.’ The Constitution of Belgium (1831)

[18]Thomas McIntyre Cooley,A Treatise on the Law of Torts or the Wrongs which Arise Independently of Contract (Callaghan & Co. 1888)

[19]ibid; See also, Samuel Warren and Louis Brandeis, ‘The Right to Privacy’ (1890) Vol. 4, No. 5Harvard Law Review, pp. 193-220

[20]Entick vs. Carrington (1765) EWHC J98 (KB); Boyd vs. United States (1886) 116 U.S. 616; Marion Manola vs. Stevens & Myers (1890) N.Y Supreme Court; Weems v. United States (1910) 217 U. S. 349, 217 U. S. 373

[21]Poe et al. vs. Ullman, State’s Attorney (1961) 367 U.S. 497

[22] ‘Article 16: No one shall be molested in his person, family, domicile, papers or possessions, except by virtue of an order in writing of the competent authority, setting forth the legal grounds upon which the measure is taken. In cases in flagrante delicto any person may apprehend the offender and his accomplices, placing them without delay at  the disposal of the nearest authorities.’ The Constitution of Mexico (1857)

[23] ‘Article 16: One’s home is inviolable; no house search may take place except in the cases provided for by the law and in the form prescribed by the law.’ The Constitution of Belgium (1831)

[24]Article 15 of the Constitution of Luxembourg (1868)

[25]Olmstead v. United States (1928) 277 U.S. 438

[26]‘Right to Privacy primarily known as the right to be alone.’ Samuel Warren and Louis Brandeis, ‘The Right to Privacy’ (1890) Vol. 4, No. 5 Harvard Law Review, pp. 193-220

[27]Olmstead v. United States (1928) 277 U.S. 479

[28]ibid at (1928) 277 U.S. 438

[29] Inter-American Commission on Human Rights (IACHR), American Declaration of the Rights and Duties of Man, 2 May 1948, available at: http://www.refworld.org/docid/3ae6b3710.html [accessed 23 July 2018]

[30] ‘Article 5: Right to protection of honor, personal reputation, and private and family life: Every person has the right to the protection of the law against abusive attacks upon his honor, his reputation, and his private and family life.’ Inter-American Commission on Human Rights (IACHR), American Declaration of the Rights and Duties of Man, 2 May 1948, available at: http://www.refworld.org/docid/3ae6b3710.html [accessed 23 July 2018]

[31]UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III), < http://www.refworld.org/docid/3ae6b3712c.html> Last visit  20 July 2018

[32]“Article 12: No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.” UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III), < http://www.refworld.org/docid/3ae6b3712c.html>Last visit  20 July 2018

[33] ‘Everyone has the right to respect for his private and family life, his home and his correspondence.’ Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, 4 November 1950, ETS 5, available at: http://www.refworld.org/docid/3ae6b3b04.html  Last visited  22 July 2018

[34]Silverman v. United States (1961) 365 U. S. 505, 365 U. S. 510, 365 U. S. 512; Lopez v. United States (1963) 373 U. S. 427, 373 U. S. 438-439; Berger v. New York (1967) 388 U. S. 41, 388 U. S. 57, 388 U. S. 59

[35] Vance Packard, The Naked Society  (Penguin 1964)

[36] Myron Brenton, The Privacy Invaders (Coward-McCann 1964)

[37] UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171, available at: http://www.refworld.org/docid/3ae6b3aa0.html [accessed 22 July 2018]

[38]Katz vs. United States (1967) 389 U.S. 347

[39]ibid

[40] Jerry Berman & Deirdre Mulligan, The Internet and the Law: Privacy in the Digital Age: A Work in Progress (1999) 23 Nova Law Review. pp. 549- 554

[41] Daniel J. Solove, Privacy and Power: Computer Databases and Metaphors for Information Privacy (2001) 53 Stanford Law Review pp. 1393-1394

[42]Jerry Berman & Deirdre Mulligan, The Internet and the Law: Privacy in the Digital Age: A Work in Progress (1999) 23 Nova Law Review. pp. 549- 554

[43]Daniel J. Solove, The Digital Person Technology and Privacy in the Information Age (New York University Press, 2004) p. 44

[44]ibid

[45] Ann Cavoukian& Don Tapscott, Who Knows: Safeguarding Your Privacy in a Networked World (McGraw-Hill 1997)

[46] Daniel J. Solove, Understanding Privacy (Harvard University Press, 2008)

[47]A. Michael Froomkin, The Death of Privacy? (2000) 52 Stanford Law Review , pp. 1461-1462

[48] Alexandra Rengel, Privacy in 21st Century (MartinusNijhoff Publishers 2013) p. 43

[49] Jerry Berman & Deirdre Mulligan, The Internet and the Law: Privacy in the Digital Age: A Work in Progress  (1999) 23 Nova Law Review, pp. 549-554

[50]Olmstead v. United States (1928) 277 U.S. 479

[51]Katz vs. United States (1967) 389 U.S. 347

[52] A. Michael Froomkin, The Death of Privacy? (2000) 52 Stanford Law Review , pp. 1461-1462; See also, Alexandra Rengel, Privacy in 21st Century (MartinusNijhoff Publishers 2013) p. 42

[53] Alexandra Rengel, Privacy in 21st Century (Martinus Nijhoff Publishers 2013) p. 42

[54]Sharda vs. Dharmpal (2003) AIR 3450 SC

[55]ibid

[56] Daniel J. Solove, Privacy and Power: Computer Databases and Metaphors for Information Privacy (2001) 53 Stanford Law Review pp. 1393-1394

[57]Aristotle, The Politics, in The Complete Works of Aristotle (2nd ed., Jonathan Barnes ed., Princeton 1984) (350 B.C.) pp. 3208-3209

[58] ibid

[59] ‘Article 16: One’s home is inviolable; no house search may take place except in the cases provided for by the law and in the form prescribed by the law.’ The Constitution of Belgium (1831)

[60] ‘Article 15 – The home is inviolable. No domiciliary visit may be made exception cases and according to the procedure laid down by the law’. The Constitution of Luxembourg (1868)

[61] ‘Article 29:  Inviolability of domicile. (1) The domicile and place of residence shall be inviolable. No one may enter or remain within the premises of a person’s domicile or place of residence without his/her consent. (2) The law shall allow the derogation from the provisions of paragraph (1) under the following circumstances: (a) for carrying into effect of an arrest warrant or a court sentence; (b) for forestalling of an imminent danger threatening a person’s life, physical integrity and belongings; (c) for preventing the spreading of an epidemic disease. (3) Searches and investigations on the spot shall be ordered and carried out only under the terms of law. (4) House searches at night shall be forbidden except for the cases of a flagrant misdemeanor.’ The Constitution of Moldova (1994)

[62]Poe et al. vs. Ullman, State’s Attorney (1961) 367 U.S. 497

[63] ‘Article 10 (1): The privacy of correspondence, posts and telecommunications shall be inviolable.’ The Constitution of Germany (1949)

[64] ‘Article 39 – Freedom and Secrecy of Communication: Freedom of communication by post, telegraph, and telephone and the secrecy thereof is guaranteed; accordingly, censorship of communications and disclosure of their contents are not permitted except in the circumstances and manner specified by law.’ The Constitution of Kuwait (1962)

[65] ‘Article 48 (1): The state recognizes the citizens’ right to inviolability of domicile, correspondence and other means of private communication, except in cases expressly provided by the law in relation to criminal process.’ The Constitution of Guinea-Bissau (1984)

[66] ‘Article 1 (5):  The secrecy of correspondence and postal, telegraphic, telephonic, and telemetric communications shall be inviolable. Restriction of this inviolability shall only be ordered in application of the law, for reasons of public order and the security of the state.’ The Constitution of Gabon (1991)

[67] ‘Article 26 (2): Everyone has the right to the inviolability of his notes and correspondence including postal letters, and communications made by means of telephone, telecommunications and electronic devices.’ The Constitution of Ethiopia (1995)

[68] Used to describe where ‘right to privacy’ can be enforced.

[69] ‘Article 7 (a): All persons have the right to privacy and to intimacy.’ The Constitution of Israel (1949)

[70] ‘Article 59 (1): In the Republic of Hungary everyone has the right to the good standing of his reputation, the privacy of his home and the protection of secrecy in private affairs and personal data.’ The Constitution of Hungary (1949)

[71] ‘Article 9 (1): The private and family life of the individual is inviolable.’ The Constitution of Israel (1975)

[72] ‘Article 20 (1): Everyone’s private life, place of personal activity, personal records, correspondence, communication by telephone or other technical means, as well as messages received through technical means shall be inviolable. Restriction of the aforementioned rights shall be permissible by a court decision or also without such decision in the case of the urgent necessity provided for by law.’ The Constitution of Georgia  (1995)

[73] ‘Article 28 – Right to privacy : Except as provided by law, the privacy of any person, his or her home, property, document, data, correspondence or matters relating to his or her character shall be inviolable.’ The Constitution of Nepal (1997)

[74]  “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.”

[75] ‘Everyone has the right to respect for his private and family life, his home and his correspondence.’

[76](1) No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. (2) Everyone has the right to the protection of the law against such interference or attacks

[77]Justice K.S.Puttaswamy(Retd) and Anr vs.  Union Of India And Ors (2017) Writ Petition (CIVIL) NO 494 OF 2012, available at: https://indiankanoon.org/doc/91938676/ [ accessed on 29/07/2018]

[78]‘Article 21 is the heart and soul of the Indian Constitution, which speaks of the rights to life and personal liberty. Right to life is one of the basic fundamental rights and not even the State has the authority to violate or take away that right. Article 21 takes all those aspects of life which go to make a person’s life meaningful. Article 21 protects the dignity of human life, one’s personal autonomy, one’s right to privacy, etc.’Justice K.S.Puttaswamy(Retd) and Anr vs.  Union Of India And Ors (2017) Writ Petition (CIVIL) NO 494 OF 2012

[79]‘ Article 32: No person shall be deprived of life or personal liberty save in accordance with law.’

[80] Digital Security Bill, available at http://www.dpp.gov.bd/upload_file/gazettes/25585_59317.pdf, [accessed on 30/7/2018]

[81]X vs. Iceland (1976) ECHR 7, (1976) 5 DR 86

[82]P.G. & J.H. vs. United Kingdom (2001) IX Eur. Ct. H.R. 546

[83] See, H. Thomas Gomez-Arostegui, Defining Private Life Under the European Convention on Human rights by Referring to Reasonable Expectations (2005) Vol. 35 No. 2 California Western International Law Journal, pp. 153-202

[84]See,Z vs. Finland (1997) 1 Eur. Ct. H.R. 323; Martin vs. United Kingdom (1996) App. No. 27533/95, 21 Eur. H.R. Rep. CDll2 (Commission Decision); Gaskin vs.United Kingdom (1989);  160 Eur. Ct. H.R. (ser. A); B vs. France (1992) 232-C Eur. Ct. H.R. (ser. A)

[85] The Right to Information Act, 2009 , Section 2, sub-section (iv) .

[86] Willfully sharing of  content or information, either personal or professional, relevant with the features of the particular social media

[87] Matt Burgers, ‘Take back control of all the data Google stores about you with our easy-to-follow security tips’, Wired (UK, 16-03-2018) available at https://www.wired.co.uk/article/google-history-search-tracking-data-how-to-delete [accessed on 28 July 2018]

[88]The Guardian ‘Revealed: 50 million Facebook profiles harvested for Cambridge Analytica in major data breach’ available at https://www.theguardian.com/news/2018/mar/17/cambridge-analytica-facebook-influence-us-election [accessed on 28 July 2018]

[89] Kristin Wong, 4 Free Apps That Can Earn You Extra Cash, The New York Times (Feb. 13, 2018) available at https://www.nytimes.com/2018/02/13/smarter-living/cash-back-apps.html [accessed on 28 July 2018]

[90]Warwick Ashford, ‘Free mobile apps a threat to privacy, study finds’ Computer Weekly (31-10-2012) available at https://www.computerweekly.com/news/2240169770/Free-mobile-apps-a-threat-to-privacy-study-finds [accessed on 28 July 2018]

[91]Roland Moore-Colyer, ‘Android keyboard app leaks data on 31 million users’ The Inquirer (06-12-2017) available at https://www.theinquirer.net/inquirer/news/3022537/android-alternative-keyboard-app-sucks-up-and-leaks-data-on-31-million-users[accessed on 28 July 2018]

[92]Abhijit Ahaskar ‘How Android apps are spying on you’, Livemint (10-05-2017) available at https://www.livemint.com/Technology/ocav82er7aZhaAPZQfQu3N/How-Android-apps-are-spying-on-you.html [accessed on 28 July 2018]

[93]The Indian Express ‘Your smartphone could be recording your screen, claims study’ available at https://indianexpress.com/article/technology/social/your-smartphone-could-be-recording-your-screen-claims-study/ [accessed on 28 July 2018]

[94]Stephan Uttom and Rock Ronald Rozario, ‘Bangladesh’s lax security sees rise in cyber crime’, UCAnews, (07-06-2018) available at https://www.ucanews.com/news/bangladeshs-lax-security-sees-rise-in-cybercrime/82458 [accessed on 29 July 2018]

[95]Ishtiaque Alam, ‘Social Media Radicalisation in Bangladesh: a Lurking New Threat’ Foreign Affairs Insights & Review(5-11-2015) available athttp://fairbd.net/social-media-radicalisation-in-bangladesh-a-lurking-new-threat/[accessed on 26 July 2018]; See also, The Guardian, Internet biggest breeding ground for violent extremism, ministers warn(06-02-2012) available athttps://www.theguardian.com/uk/2012/feb/06/internet-violent-extremism-breeding-ground[accessed on 26 July 2018]