Rights of Privacy (book)
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| Book Information | |
|---|---|
| Author | Baqer Ansari |
| Style | Argumentative |
| Language | Persian |
| Volumes | 1 |
| Pages | 350 |
| اطلاعات نشر | |
| Publisher | SAMT Publications |
- Abstract
Rights of Privacy is a research study on defining the scope and limits of the right to privacy with a comparative look from the perspective of international law and Islamic studies. The author, Baqer Ansari, defines privacy as a domain of each individual's life where they expect others not to access information related to that domain without their consent. He considers the protection of individual freedoms and independence, the preservation of honor, and the innate human need for privacy as reasons for its necessity.
The author identifies instances such as the prohibition of spying (*tajassus*), the prohibition of entering homes without permission, the sanctity of privacy from eavesdropping and voyeurism, the prohibition of suspicion, and the prohibition of spreading indecency as examples of the right to privacy that are emphasized in the Islamic legal system. Regarding the status of privacy in Iranian law, the author believes that in the Iranian legal system, privacy is not explicitly and formally protected; however, it is implicitly and within the context of other legal rules, albeit incompletely, protected.
Brief Introduction and Structure
The book *Rights of Privacy* is the title of a research work by Baqer Ansari, published by SAMT Publications in 1386 SH (2007 CE). The book has been reprinted in subsequent years. It served as the foundational study for the draft bill on the protection of privacy and has been written as a basic textbook for undergraduate and graduate students in the fields of law and communication sciences.
The author considers the necessity of compiling this book to be for raising awareness and providing information about the concepts and instances of privacy and for transferring the experiences of other countries. He believes that privacy is rooted in Islamic teachings and that understanding its scope and limits can have a significant impact on defining the position of this right in individual and social relations.
Structure
The book has three parts:
- The first part deals with the theoretical foundations of privacy, covering topics such as the concept of privacy (definition, relativity, and factors affecting it), the basis and nature of privacy (1. protection of individual freedom and independence, 2. protection of individuals' honor and dignity, and 3. the innate human need for privacy), the protection of privacy in international documents (the International Covenant on Civil and Political Rights and the European Convention on Human Rights), and privacy in Islamic law (pp. 11-82).
- The second part of the book provides a comparative study of privacy in countries like the United Kingdom, France, the Federal Republic of Germany, the Kingdom of Belgium, Switzerland, the Kingdom of the Netherlands, the Federative Republic of Brazil, Turkey, India, and South Korea. It then discusses privacy in the positive law of Iran, covering the Islamic foundations of the Iranian legal system, the Constitution, the Code of Criminal Procedure, and the Islamic Penal Code (pp. 83-152).
- The third part of the book is dedicated to the categories and instances of privacy, which are examined in the laws of Iran and other countries, including: the privacy of the home and individuals' solitude, physical privacy, the privacy of job applicants and employees, privacy in media activities, the privacy of personal information, and the privacy of communications (pp. 155-315).
- Finally, the draft bill for the protection of privacy is included as an appendix (pp. 316-341).
What is Privacy?
The author of the book believes that despite its frequent use in colloquial language and in philosophical, political, and legal discussions, a definitive and specific definition of privacy has not yet been provided. This concept has deep roots in sociological and anthropological discussions, which show how it is valued in different cultures (p. 11). According to the author, privacy is one of the rights included in human rights and is one of the fundamental rights of human beings (pp. 52-53).
The author presents numerous definitions of privacy, both narrow and broad, and ultimately defines privacy as follows: "It is a domain of each individual's life where that individual, typically or by prior declaration, expects others not to access information related to that domain, or not to enter that domain, or not to look at or monitor that domain, or in any other way be intruded upon by others in that domain" (p. 38). According to the author, some matters and places are inherently within the domain of privacy, such as the home, while others are included in the domain of privacy at the request of individuals (p. 81).
In the author's belief, factors that influence the determination of a reasonable and legitimate claim to privacy include whether the place of the privacy violation is public or private, whether the subject of privacy is ordinary or sensitive, the misuse of information obtained from the privacy violation, the means and methods of the privacy violation, the status and position of the claimant, the consent or non-consent of the individual to the privacy violation, and the existence or absence of a relationship between the claimant and the violator. For example, when an individual knowingly and willingly places themselves in the public eye, they cannot claim a violation of privacy. Therefore, privacy is relative, meaning what may be considered private for one person may not be so for another, and this differs in every culture. It is also subject to circumstances and can vary from one generation to another (pp. 23-38).
Why Protect Privacy?
In response to the question of why privacy should be protected, the author points to three foundations in this regard:
- Protection of individual freedoms and independence against fellow human beings, the media, and governments: Protecting privacy prevents information about individuals' private lives from being disclosed to others, thereby preventing others from dominating their lives and preserving their freedom, dignity, and security. On the other hand, it is one of the prerequisites and tools for collective participation in the right to self-determination, as the spiritual independence of citizens and having a suitable space for thought and expression requires the protection of privacy. Protecting privacy in the face of the authoritarianism and despotism of governments will also preserve the freedom, security, and independence of individuals (pp. 40-45).
- Preserving the honor and dignity of individuals: Protecting privacy and the non-disclosure of secrets of others leads to the preservation of their honor and dignity (p. 51).
- The innate human need for privacy: Having privacy is an innate need that humans require (p. 51).
Privacy in Islamic Law
Citing verses and narrations, the author explains the instances of privacy in Islamic law in the following cases:
- Prohibition of spying, snooping, and investigation: Citing Quran 49:12 and narrations from the Prophet (s) and Imam al-Sadiq (a), the author argues for the prohibition of spying (*tajassus*) and investigation in Islam (pp. 66-69).
- Prohibition of entering homes without seeking permission: The author explains that in the Quranic verses and Islamic tradition, entering people's homes is conditional on seeking familiarity and permission. He cites Quran 24:27 and Quran 2:189, as well as the Prophet's (s) ruling in the case of Samurah ibn Jundab (pp. 71-72).
- Prohibition of voyeurism (*istiraq al-basar*): According to the author, looking at anything that typically and personally falls within the domain of privacy is prohibited. He bases the prohibition of voyeurism on a narration from the Prophet (s). Based on this, he believes that looking at women who observe their hijab in a conventional manner is prohibited, as hijab is a formal declaration of immunity from the gaze of others (p. 73).
- Prohibition of eavesdropping (*istiraq al-sam'*) (p. 74).
- Prohibition of suspicion: The author cites Quran 49:12 and numerous narrations for the prohibition of suspicion (pp. 74-77).
- Prohibition of slander and backbiting (pp. 77-78).
- Prohibition of insult, satire, and accusation (p. 79).
- Prohibition of spreading indecency and violating modesty: Regarding the prohibition of spreading indecency, the author explains that it is understood from the collection of narrations and their interpretations that disclosing certain private matters, such as violating the modesty of private parts, is not permissible even with the consent of the person whose privacy it is, because it is considered spreading indecency (pp. 79-80).
- Prohibition of breach of trust: In the author's view, fulfilling promises and returning trusts to their owners have been repeatedly recommended in the Quranic verses and Islamic tradition. A trustee is obligated to keep the deposit as it was entrusted to him and to refrain from tampering with it; otherwise, he will be responsible for any defect or fault that may occur to the entrusted property, even if the defect or fault is not attributable to him (pp. 80-81).
After stating the instances of privacy, the author points out that the system of social rulings in Islam has placed a vast domain of human life within the sphere of privacy, which the government and other members of society are forbidden from entering. Of course, the part of privacy that Islam permits entry into under titles such as enjoining good and forbidding evil or espionage during wartime is very limited, and its violation is possible only in times of necessity (pp. 81-82).
Protection of Privacy in the Positive Law of Iran
Regarding the status of privacy in Iranian law, the author believes that in the Iranian legal system, privacy is not specifically and formally protected; however, it is implicitly and within the context of other legal rules, albeit incompletely, protected (p. 135).
The Constitution
From the author's perspective, there is no specific text in the Constitution that protects privacy under this title. If privacy is categorized into the privacy of solitude and seclusion, spatial privacy, informational privacy, communicational privacy, and physical privacy, then having privacy as a fundamental right has not been recognized in the Constitution, and the privacy of solitude and seclusion has not been protected. Regarding spatial privacy, Article 22 only refers to property and residence and does not mention the privacy of the workplace, unless an expansive interpretation is given to the word "occupation." There is also no specific mention of physical privacy, and only by interpreting "dignity" and "life" mentioned in Article 22 can physical privacy be considered under the protection of the Constitution (pp. 137-138).
According to him, freedom of information is reflected in a very narrow sense in Article 24, and not violating the foundations of Islam and not disrupting public rights are mentioned as exceptions to this freedom. Violating privacy through publications and the press can hardly be considered a violation of the foundations of Islam or a disruption of public rights. The privacy of personal data has also not been addressed in any of the articles of the Constitution (p. 137).
In the author's opinion, Article 25, without explicitly mentioning freedom of communication, addresses the protection of communicational privacy. This article prohibits any form of spying, according to which many instances of privacy violation can be considered spying. Article 22, which declares rights to be immune from intrusion, can, with a dynamic interpretation, be understood to include the right to privacy (p. 138). He also states that Articles 14 and 20 emphasize the respect for the fundamental rights of all individuals, according to which the right to privacy can be considered an instance of these articles (p. 138).
The Islamic Penal Code
According to the author's report, some articles of the Islamic Penal Code implicitly protect the right to privacy, and some of its articles explicitly protect instances of privacy, with penalties prescribed for violators. For instance, in Articles 570, 572, and 575 of this law, penalties are prescribed in support of physical privacy for those who engage in the illegal imprisonment or detention of citizens. Also, Articles 580 and 694 of the Islamic Penal Code (Ta'zirat) provide for criminal sanctions for the violation of the privacy of homes, and Articles 691 and 692 have provided for criminal sanctions for the privacy of places. Article 582 addresses communicational privacy, and Articles 604 and 648 address informational privacy, prescribing criminal sanctions for their violators. Article 641 also declares telephone harassment, which is an instance of violating the privacy of solitude and seclusion of individuals in society, to be punishable (pp. 149-153).