Right to privacy interference ‘permissible’
Mpho Mokwape | Monday June 19, 2023 06:00
He said Section 3 of the Constitution provides that every person in Botswana is entitled to the fundamental rights and freedoms of the individual, including the right to the protection of their home and other property, whatever their race, place of origin, political opinions, colour, creed, or sex, albeit subject to the rights and freedoms of others and the public interest.
In his report commissioned by the Media Policy and Democracy Project and titled ‘Public Space Surveillance and Protection of Privacy: The Case of Botswana’, Balule looks at the nature and the protection of privacy.
He said with the installation of public space video surveillance by the Botswana Police Service (BPS), the right to privacy has been questioned as to whether lines will not be blurred as to what is right or wrong. The Balule report states that Section 9 of the Constitution bestows upon every person in Botswana the right to privacy and this right extends to incorporeal property such as personal information.
Balule, who is also the current UB’s deputy Dean of the Faculty of Social Sciences, says public space surveillance through video cameras by public entities raises the issue about the State’s negative obligation not to interfere with the right to privacy unless the conditions for interference are satisfied.
He, however, explained that although the right to privacy is protected under the Constitution, it was not absolute as interference with the right is permissible. He pin pointed Section 9 of the Constitution as having some of the provisions that allow interference and it reads in part: “Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision that is reasonably required in the interests of defence, public safety, public order, public morality, public health, town and country planning, the development and utilisation of mineral resources, for the purpose of any census or in order to secure the development or utilisation of any property for a purpose beneficial to the community.” It further reads: “ ... it’s reasonably required for the purpose of protecting the rights or freedoms of other persons; that authorises an officer or agent of the government of Botswana, a local government authority or a body corporate established by law for a public purpose to enter on the premises of any person in order to inspect those premises or anything thereon for the purpose of any tax, rate or duty or in order to carry out work connected with any property that is lawfully on those premises and that belongs to that government, authority or body corporate, as the case may be; or that authorises, for the purpose of enforcing the judgment or order of a court in any civil proceedings, the search of any person or property by order of a court or entry upon any premises by such order, and except so far as that provision or, as the case may be, anything done under the authority thereof is shown not to be reasonably justifiable in a democratic society.” The professor argues that the provision lays down stringent three-part test with which any interference with the right to privacy must comply with for it to be legitimate.
He noted that the test requires that the interference must comply with all of the following conditions; that it must be contained in or done under the authority of the law, second that the interference must be shown to be for the purpose of protecting any of the interests listed in the provision; and thirdly that it must be shown to be reasonably justifiable in a democratic society. “The limitations test is intended to ensure that any derogations from the right to privacy are given a strict and narrow construction.
Courts of law in Botswana are yet to elaborate on what each of the three components of the test entail. While the provision may appear to be broadly framed, courts have shown that they will adopt a narrow and strict approach when dealing with limitations,” he added. On the nature of privacy and the surveillance of public space, Balule said the capabilities of video surveillance cameras to capture, store and process information about individuals and their activities raises questions about individuals’ right to privacy in their use.
He emphasised that the High Court has observed that the right to privacy is multifaceted and multi-pronged, therefore, difficult to define. “The court, however, opined that privacy is the right of the individual, to have a life of seclusion, to be free from unwanted publicity, and to live without unwarranted interference by the publication in matters with which the public is not necessarily concerned,” Balule said. The professor explained that privacy may relate to individual choices such as religious faith, political affiliation, intimacy, secrecy and control of personal information hence the reason the High Court made an important observation that privacy must be interpreted in light of the current era and context.
He said this prompted the High Court to observe that the content of the right differs according to the prevailing societal characteristics, economic and cultural environment. “Although the High Court has cautioned that privacy is difficult to define, it has been argued that the right has two facets, substantive privacy and informational autonomy.
The substantive privacy dimension is the presumption that a person should have a private sphere with or without interaction with others, free from unsolicited intervention by other uninvited individuals to make choices about personal life,” he said.
Balule argued that aspects of substantive privacy that run the risk of intrusion due to the use of video surveillance include the right to private life, the right to anonymity, and the right not to be tracked. In the end he submitted that the right to private life is a legitimate expectation of individuals for everyone else to respect their private life without any scrutiny and intrusion without legitimate cause.
“Anonymity involves the right of an individual to conceal or reveal their identity whenever they choose. Video surveillance cameras used for surveillance in public spaces may have software that cross-match data from multiple sources and trace certain individuals,” he said. He said this include the right not to be tracked as tracking of an individual using surveillance camera may intrude into their privacy.