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Putting information security issues in legal context

6th February 2013
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Majura Evarist Majura

 Legal  Aspect of Information Security appears to have a significant role in the 21st Century.

Increase in use of computers and electronic transactions results to the legal gap in information security law in order to ensure users have a confidence and enjoying the electronic transactions.

Though current the information security law has got a lot of challenges. First, challenge is about the issue of privacy and problem of hackers as well. But on my views this will not be possible if the third world countries fail to make changes and accept the E-Commerce in their transactions.

This should be followed by the proper laws regarding to consumer protection and privacy laws. However, there is a need to include them in the third countries domestic laws.

Still there is a lot to be done by the third world countries to agree on the issues of electronic evidence, and jurisdiction issues. Once, this is done such harmonization will facilitate development and the growth of international trade.

According to Alan Westin, privacy refers as follows: “as the desire of the people to choose freely under what circumstances and to what extent they will expose themselves, their attitudes and their behaviors’ to others”.

From the above definition it shows that there are lots of things that are not clear and open in the definition. Because the term privacy refers to mean a lot of situations as Prof. Ian Lloyd stated clear that an individual has the right to control the extent to which personal information is disseminated to other people.

Prof. Ian Lloyd (Supra) went on to states that, the above definitions has two essence that is the right to live free from the attentions of others that simply means to avoid to being watched and secondly the individual is seeking to control the use to which that information is put and, in particular, its range of dissemination.

But I think the important question here is to where do this right comes from? However, the second part will explain as to whether privacy is the right of any citizen and if that is the case where does it from?

The Universal Declaration of Human Rights of 1948 in Article 12 came up with the provision that provides for the right of privacy. But the question is whether this Universal Declaration has the binding force. The Universal Declaration of Human Rights (Supra) states as follows:

“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.”

However, as to my concern it is easy to argue that probably the right to privacy is coming from the Universal Declaration of Human Rights (Supra) and therefore it is the right of every citizen but the problem arises here as to whether the above Declaration has the binding force.

Am sure it has got no binding force that is why in Tanzania the human rights were included very late in the Constitutions of Tanzania of 1977 as amended from time to time. The inclusions of those human rights were in 1984 despite of having many constitutions such as an interim constitution before the 1977 constitutions. The next part will answer as to whether the Government should introduce the right of privacy.

Based on the above provision of the Declaration of Human Rights (Supra), it shows that everyone has the right to the protection of the law against such interference or attacks . As far as I see there is a need for the Government to introduce the right of privacy.

This is because that there is an increase usage of Electronic commerce hence citizens are avid users of websites such as You Tube and Face book. They are publishing photos and videos, often taken with mobile phones of other citizens caught in humiliating or compromising situations. Others are posting blogs which make the most scurrilous allegations (unfortunately true in most cases) about our most famous citizens. But there is a need also to see as to what is the position at Common Law regarding to the right to privacy.

There is no right to privacy in United Kingdom (UK). However, in Malone v Metropolitan Police Commissioner, the UK courts held that telephone tapping by the police could not be unlawful in the UK as there was no right to privacy at common law that could be breached. This contrasts with the United States of America where the right to privacy is a protected right.

The US Supreme Court in Lawrence v Texas   declared that a Texas statute that criminalized gay and lesbian sexual intercourse was unconstitutional as it violated the right to privacy. 

However, the position in United Kingdom recognizes privacy in the right of confidence and also in the Article 8 of the European Convention of Human Rights.

Though Article 10 of the same conventions appears to contradict the Article 8. As to the right of confidence it is recognized as the misuse of the private information as stated above by Prof. Ian Lloyd (Supra).  The duty of confidence is breached when if the information is used without the consent, and to the detriment, of the owner or the subject of the information.

Article 8 states that everyone has the right to respect for his private and family life, his home and his correspondence and Sub-Article 2 went on to state that the public authority should not interfere unless there is a need to protect public interest or for the protection of Health.

The same applies in the case of Campbell v Mirror Group Newspapers where the High Court recognized that celebrities, even self-publicists, were entitled to some space or privacy. Unless there was an overriding public interest in publication, the media had to respect information relating to the private lives of celebrities which they legitimately chose to keep private.

The above provision which seems to contradict with Article 10 which talks about the freedom of speech which empowers the investigative journalism to say anything and of course this one can act as a defense to them but the Court narrated clear in the Campbell (Supra) case based on the Article 8 there was no any need for the investigative journalism to take the picture because there was no interest to the public.

However, that was the violations of privacy. The next part will explain clear as to whether the introductions of the right to privacy in any country will prevent the investigative journalism with regard to Article 8 and 10 of the above.

 

Majura Evarist Majura is an advocate of the High Court of Tanzania, a lecturer in Law and Business Studies with Mount Meru University in Arusha, a business consultant and a French-to-German Translator. Email:  juranubia@yahoo.fr Tell. No. +255 754 269 563.

SOURCE: THE GUARDIAN