History has shown that human beings are inherently social constructs, possessing powers and autonomy that were initially exercised for themselves and by themselves. However, as societies evolved and the need for collective well-being became more critical, people made a conscious decision to transfer certain aspects of their autonomy to a central authority. In most cases, this authority takes the form of a body or group vested with law-making, executive, and judicial powers. While individuals have surrendered the majority of their autonomy for the benefit of order and governance, their fundamental freedoms remain vested in them, only to the extent that their exercise infringes upon the rights of others, public policy, or interferes with the law.
Across democratic societies, the protection of these fundamental freedoms, such as freedom of expression, freedom of religion, freedom of assembly and association, and protection of the law, stands as an essential pillar to the manifestation of a functioning democratic state. These rights are not merely aspirational ideals; they are the cornerstone to the functioning of a free and open society, ensuring that individuals can participate meaningfully in public discourse and civic life.
Before us, however, is the enduring question that remains: how do we strike a fair and principled balance when these rights potentially conflict with other inherent rights? How do we weigh the scale and ensure that the measurement is accurate? Often, in navigating these contentions, the courts and lawmakers are called upon to weigh competing rights, assess context, and determine whether the limitation of one right is justified to preserve another. For several years, the issue of privacy not being expressly codified in several Commonwealth Caribbean Constitutions has been a subject of discourse, and now more than ever, the conversation surrounding freedom of expression and privacy is rapidly evolving since almost every act online is an act of expression. Participating in an online chat, networking with friends and colleagues, surfing websites and reading news, and downloading files.
This piece is aimed at exploring how the right to privacy and the right to freedom of expression intertwine, referencing constitutional provisions, international instruments, and judicial interpretations.
Constitutional Provisions and International Instruments
The Constitution of the Cooperative Republic of Guyana
In Guyana, the Constitution, as the supreme law of the land, guarantees the protection of these individual rights and freedoms. Specifically, Article 146 affirms:
“Except with his own consent, no person shall be hindered in the enjoyment of this freedom of expression, that is to say, freedom to hold opinions without interference, freedom to communicate ideas and information without interference and freedom from interference with his correspondence.”
Additionally, Article 40 (1) (c) provides:
“Every person in Guyana is entitled to the basic right to protection for the privacy of his home and other property and from deprivation of property without compensation.”
From these constitutional provisions, it is evident that the right to freedom of expression is explicitly protected. However, while the right to privacy is not stated in equally direct terms, it can be inferred from Article 40, which guarantees fundamental rights and freedoms, including the protection of “private and family life.” This phrasing suggests a constitutional recognition of the right to privacy, albeit implicitly.
Although the right to privacy is not expressly enshrined in Guyana’s Constitution, it exists as a natural counterpart to the right to freedom of expression. It should not be viewed merely as a functional legal construct. Its significance, rooted in the preservation of human dignity and autonomy, points to the need for its formal codification within national law. Privacy lies at the core of our most basic understanding of human dignity; the ability to make autonomous choices about our lives, bodies, and relationships, free from unwarranted intrusion or coercion, is essential to what it means to be human.
International Instrument
International Covenant on Civil and Political Rights (ICCPR)
Article 17 of the International Covenant on Civil and Political Rights (ICCPR) provides:
- “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.”
- “Everyone has the right to the protection of the law against such interference or attacks.”
Article 19 of the International Covenant on Civil and Political Rights (ICCPR) affirms:
- Everyone shall have the right to hold opinions without interference.
- Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
Universal Declaration of Human Rights
Article 19 Universal Declaration of Human Rights provides:
“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
Article 12 Universal Declaration of Human Rights provides:
“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.”
The Variance of the Right to Freedom of Expression and the Right to Privacy
The right to privacy and freedom of expression are interdependent but can also be antagonistic. The press’s role in disseminating information may conflict with an individual’s desire to protect their private life. The media often invokes freedom of expression when publishing stories that touch on private lives, especially of public figures. Most times it leads to the courts having to determine whether such publication serves the public interest or merely panders to public curiosity. The idea that we must choose between privacy and security has too often pervaded the political and economic discourses, creating false dichotomies and spurring over-simplified arguments about the roles of technologies.
Beyond the press’ quest to publicize information of sensitive nature, which has the propensity to attract thousands of viewers, is the catastrophe we faced within the digital era and evolving technological society. Aunty Pam once said that “when you think your secret is safe, the walls know your secrets.” Within this digital era, we ought to question ourselves whether there is even any such thing as privacy. In contemporary times, digital platforms amplify both expression and privacy concerns. Social media enables vast expression but also poses dangers of doxing, data mining, and revenge porn, all of which severely affect personal privacy. The General Data Protection Regulation (GDPR) in the European Union highlights the increasing legal focus on data privacy, emphasizing that personal data must be handled with consent, purpose, and security.
The echoed sound of a democratic society, shouting the right to freedom of expression, when really the unanswered question is whether the right is even free from interference when people are constantly victimised, their profiles are tapped into, they are at a greater risk of identification, profiling, and persecution for doing what the constitution mandates for a democratic state. The same aunty Pam was once having a conversation with a trusted friend when the conversation was recorded and published on a social media platform. It was published all in the name of freedom of expression, and the information was of public interest despite it being a sensitive matter. Aunty Pam was then charged for the content of the information released despite the absence of her consent to record and publish the private conversation. How does one private conversation with a friend become one of public interest? The issue we faced in today’s technological world is not only that your private information is being publicized by the media or those who regard themselves as journalist but fail to uphold the standards of a responsible journalist, but the issue also of whether your in-house conversations will be the subject of a discourse in the name of maintaining public order and addressing public interest issues.
Citizens are not to be blindsided by the communication surveillance that are all too possible and probable. Person’s private life, communication and connections are being tampered with; their intimate feelings and opinions, who they have relationships and connections with, what newspapers they read and what movies they watch, where they go and who they talk to: each of these pieces of information are incredibly sensitive and personal. They have long been considered the preserve of an individual’s private life, not for exposure to or infiltration by anyone without consent or without exceptional justification.
The latest report by the UN Special Rapporteur on freedom of opinion and expression echoes these concerns. The Special Rapporteur emphasises that “communications surveillance should be regarded as a highly intrusive act that potentially interferes with the rights to freedom of expression and privacy and threatens the foundations of a democratic society”. Yet, to secure the first to a successful visa application to the USA, applicants are required to disclose their social media handles and make their accounts publicly accessible, and failure to comply with new rules could result in visa denial. Uncle Sam once said, “You can’t give the cherry with one hand and take it back with the other hand.” Why do we advocate for one thing and take it away with another? We must find common grounds where both one’s freedom of expression and right to privacy will be balanced. The boundary line must be drawn when a person’s privacy, dignity and integrity are at the heart of balancing the scales.
Conclusion
The right to privacy and the right to freedom of expression are radical principles for democratic societies. However, they must be interpreted contextually, with neither being absolute. The legislators and the judiciary play a vital role in maintaining a delicate balance and ensuring that a clear borderline is drawn when unnecessary interference is made with a person’s private life. As societies evolve and the world moves towards a greater technological era, the balancing act may become more complex, but it remains critical to the rule of law and preservation of human dignity.
“For several years, the issue of privacy not being expressly codified in several Commonwealth Caribbean Constitutions has been a subject of discourse, and now more than ever, the conversation surrounding freedom of expression and privacy is rapidly evolving. This may be attributed to the fact that almost every act online is an act of expression. It includes but is not limited to participating in an online chat, networking with friends and colleagues, surfing websites and reading news, and downloading files.”