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Criminology and Criminal Justice

In the modern digital age there is an inevitable conflict between the two essential human rights - the right to privacy and the right to information. Granting the limitation of the collection, access and use of personal details about the private life, the right to privacy comes into conflict with other individuals’ right to information that guarantees access to personal data. 

Being protean and controversial, conceptions of privacy were developed by many scientists and policymakers. According to a dictionary, privacy is “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” (TheFreeDictionary). Bennett and Raab note that the concept of privacy is based on the approach to the society as the unity of relatively autonomous individuals. They focus on certain differences between the right of privacy and interests of autonomous individual (Bayley, 281).  Dagg  adds  that privacy is founded on physical and moral autonomy, being embodied in the freedom of thoughts, actions and decisions (Bayley, 281).  . Canadian case law distinguish three categories of privacy: bodily, territorial, and informational. In the privacy hierarchy, Pohoretsky highlights the prime importance of bodily category referring as a violation of the sanctity of an individual’s body (Bayley, 282). Territorial privacy is regarded in the context of official rights against government intrusion in the individual’s territory that may be applied in the violation of a person’s office or home. Both above- mentioned categories are accompanied by the elements of the third category- informational privacy that is a comparatively recent conception (Bayley, 287). 

In Canada, the two main law acts, protecting an individual’s right from violation, are Section 8 of The Canadian Charter of Rights and Freedoms (the Charter) and The Personal Information Protection and Electronic Documents Act (PIPEDA).

The rights of the individuals to be protected against unreasonable search and seizure are proclaimed by Section 8 of the Canadian Charter of Rights and Freedoms. A search and seizure take place in cases of the government or its agents’ intrusion into the process of obtaining data about a person. Getting information about individuals by private actors (Internet service providers, doctors, etc.) who act without a request by state bodies, cannot be determined as search or seizure to underlie section 8 of Charter. Enjoying the right to privacy, an individual is to be present at the time of the search and to control over the searched area. Section 8 of the Charter protects personal and confidential information, including the one that reveals intimate details and choices of the person. In the cases of abandonment, such as voluntary abandonment of the searched area or thing (banking documents thrown into the bin or a cigarette butt dropped), the rationale occurs. An expectation of privacy cannot be regarded as reasonable if “state agents employ unintrusive techniques in conducting the search” (Bayley, 292).

A person’s privacy is to be protected against violations both by the state and by other people. In the digital era of cameras, social networks, blogs and YouTube, individuals have an unprecedented power to disclose any information to an uncountable number of recipients all over the world. Setting a precedent, the famous project Google Street View involved numerous omnidirectional cameras to create its street videos. There are many complaints on this violation of the right of privacy by the similar actions. Nevertheless, Google representatives declared their activity completely legal, focusing on the fact that “they are not taking pictures of anything that cannot be observed from a public street”(Lipton, 500). Recording technologies (mobile phone cameras, digital voice recorders, etc.) facilitate invasions into individuals’ private life, when any person can disclosure obtained private information by pressing a button.  It may lead to extremely detrimental consequences. For example, in autumn 2010 Rutgers College student Darun Ravi “used a webcam to covertly record a video of his roommate Tyler Clementi, having sex with another student” (Richards, 358).  Darun published the message about it on Twitter and suggested peeping the same incident on-line several days later. Clementi, dishonored and badgered, committed a suicide (Richards, 358). The next two examples illustrate the idea of the tremendous potential of even neutral information being broadcast to the world. First one is the “Bus Uncle” case, resulted in serious physical injury when the information about talkative driver was published in the Internet (Lipton, 511). Second example shows that the unauthorized disclosure and remixing of the record, where a Canadian boy was playing with a golf ball as a hero of the Star Wars, has led to detrimental consequences. Having become an object of sneers, the boy had to drop out of school and required psychiatric treatment. The harmless information, revealed on line, led to extremely sad events, attracting special attention to an individual and making him an object of humiliations (Lipton, 511).

In April 2000, the Personal Information Protection and Electronic Documents Act (PIPEDA) came in force. It is Canada’s federal private statute of the private sector, protecting personal information, obtained during business activities. Applying to telecommunications and broadcasting industry, PIPEDA  regulates gathering, use and disclosure of personal data by organizations of all types falling under the legislation of the Parliament of Canada.  The subjects of the regulation are personal information, defined as data of any form about an identifiable person, and commercial activity.  Personal information includes data about credits or loans of the individual, employee details, revealing medical conditions and disciplinary actions. Nevertheless, “employee’s name, title, business address, telephone number, or publicly available information such as names, addresses, or telephone numbers published in directories or court records” are not considered to be personal information (Taylor, 34). PIPEDA’s ten principles are accountability, identifying purposes, consent, limiting collection, then limiting use, disclosure, and retention go, accuracy, safeguards, openness, individual access and challenging compliance. They establish rules protecting the privacy of the participants of the business activity.

To sum up, in modern era of communication technologies, one can observe the inevitable conflict between the two fundamental human rights - the right to privacy and the right to information. On the one hand, right to information grants individuals access to information, held by government bodies. On the other hand, right to privacy guarantees any person to limit the collection, access and use of personal details about his or her private life. Privacy is the right of people to lead their lives in a manner that is reasonably secluded from public scrutiny. Canadian case law distinguishes three categories of privacy: bodily, territorial, and informational. The development of communication technologies raises concerns about violation rights to privacy both by state and by people. In Canada this right is protected by two legislative acts: Section 8 of The Canadian Charter of Rights and Freedoms (the Charter) and the Personal Information Protection and Electronic Documents Act (PIPEDA). The Charter protects the rights of the individuals against unreasonable search and seizure. Establishing rules for collecting use and disclosure of personal information in commercial activity, PIPEDA is implemented in private sector.  

The relationship between privacy and right to information remains to be the subject of great debates.  The key idea of them consists in the strong necessity to take a broader look at the issue and to implement reasonable legislative tools to keep the delicate balance between free speech and privacy.    

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