Protection Freedom of Expression and the Right - Assignment Example

HUMAN RIGHTS of Question: ‘Human rights simultaneously claim toprotect freedom of expression and the right to privacy.’ (Clapham, A. (2007) Human Rights: A Very Short Introduction, Oxford, Oxford University Press, p. 114) Evaluate this statement using the examples of the law on privacy you have studied in Unit 21. Is the current balance between a right to privacy and a right to freedom of expression appropriate? The subject of human rights has pre-occupied the world for quite a long period now as people seek to pursue their interests with freedom and all inalienable rights guaranteed to them. Human rights are very fundamental in human society and this is evidenced by its adoption in the international law, constitutions of many states, regional institutions law, and policies of private and non-governmental organizations. Most human rights provisions in various legal jurisdictions are informed by the provisions of the Universal Declaration of Human Rights (The Open University, 2012, p. 31). Most of human rights laws in many jurisdictions borrow from the Declaration’s provisions. According to the Open University (2012, p. 15), human rights are based on three main premises. The first premise is that human rights are universal, which mean that they are held equally by all people regardless of aspects such as geography, gender, and age. The second premise is that human rights are inalienable and therefore cannot be taken away from someone by anybody regardless of the circumstances. The final premise is that human rights are indivisible and therefore cannot be denied simply because they are viewed to be non-essential or less important. Clapham (2007, p. 114) states “human rights simultaneously claim to protect freedom of expression and the rights to privacy.” Over the years, there has been debate regarding the issues that Clapham raises in this assertion. The debate has been revolving around the question of how and to what extent does human rights protect freedom of expression and the rights to privacy. Also, questions have been raised regarding the nature and limitations of such protection and whether there are circumstances in which this protection can be violated. Therefore, this essay will evaluate this statement using several examples of the privacy law. Also, it will discuss the question of whether the current balance between a right to privacy and a right to freedom of expression is appropriate. Before evaluating this statement, it is important to define some of the key terms in the statement: human rights; freedom of expression; and right to privacy. Human rights refer to the fundamental rights that are inalienable to an individual by the virtue of being a human being (The Open University, 2012, p. 10). Human rights can exist as legal rights or natural rights. Freedom of expression is a legal and political right that allows one to communicate his or her ideas and opinions through various channels of communication. It is essential in daily interactions of individuals, as well as in enabling the society to work and to actively participate in decision making (p. 92). The right to privacy provides individuals or group of individuals to seclude certain information about themselves or seclude themselves and therefore able to selectively reveal themselves. The right to privacy and the freedom of expression are fundamental human rights provisions that allow individual members of the society to interact with each other and to form groups with others in the society. They both provide the bedrock upon which intimate relationships, family relationships, and friendships are built (p. 92). Since most of these aspects are interrelated, protecting right to privacy would simultaneously protect certain aspects of freedom of expression. Clapham (2007, p. 114) asserts that human rights simultaneously claim protection of freedom of expression and that of the right to privacy. A critical look into the definition of human rights and the various national, regional and international law indicates that human rights claim protection of all human rights and all types of freedom. It is this fact that informs many assertions regarding human rights from legal scholars and practitioners such as Clapham. The assertion by Clapham regarding human rights is relatively specific to freedom of expression and right to privacy. This assertion raises questions that relate to how and to what extent does human rights simultaneously claim protection of freedom of expression, as well as the right to privacy. The protection of privacy under the human rights provisions is a way of indicating how far society can intrude into the affairs of an individual person. According to The Open University (2012, p. 91), privacy entails a person’s liberty to decide how he or she would lead their lives, protection of an individual from media invasion, and freedom from state intervention that is unwarranted. This description of what privacy encompasses tend to show that human rights claim to protect right to privacy and freedom of expression, simultaneously. There are various international human rights laws and treaties that recognize the right to privacy existence, which shows how important this right is (The Open University, 2012, p. 91). When Clapham argues that human rights simultaneously claim protection of freedom of expression and that to right to privacy, he seems to be arguing within the context of privacy and expression. His argument seems to be informed by how privacy is defined as. In particular, this assertion seems to argue that while human rights protect right to privacy, it at the same time protect freedom of expression. Therefore when human rights protect privacy by guaranteeing freedom from accountability, intrusion, or interruption, it guarantees freedom of expression. The assertion is also pegged on the assumption that protecting privacy by protection individual’s dignity, integrity, and independence is in some way protecting individual’s freedom of expression. The right to privacy seeks to protect individual’s physical autonomy which includes the right of controlling personal matters and controlling one’s identity. Freedom of expression is central to this aspect of privacy; therefore, it is true to say that human rights simultaneously claim to protect right to privacy and freedom of expression. However, it should be noted that the extent to which human rights simultaneously claim protection of freedom of expression and right to privacy as claimed by Clapham is very limited. The protection is within a very limited context which revolves around protection of physical autonomy, control of personal information disclosure, and protection from accountability, intrusion, and interruption. As has been mentioned, protection of freedom of expression and right to privacy is important in maintaining the functioning of the society. While this is true, it cannot be said that human rights simultaneously claim to protect freedom of expression, as well as the right to privacy, in totality. This is because the right to privacy conflicts with other human rights and interests including freedom of expression. The Open University (2012, p. 93) notes that there are numerous occasions that the right to privacy has conflicted with the right to freedom of expression. A good example is in R v Secretary of State for the Home Department, Ex parte Simms and Another [2000] 2 AC 115 where Lord Steyn took exception of this conflict. Lord Steyn said that freedom of expression is intrinsically and instrumentally important as it serves numerous broad objectives, key among them being promoting individual’s self fulfillment in the society and promoting democratic ideals in the society. He further said while these aspects of freedom of expression is important, right to privacy sometimes tend to conflict with them. It cannot be said that human rights simultaneously claim protection of freedom and right to privacy, at least not entirely. While human rights can claim protection of right to privacy, it cannot claim that by protecting right to privacy protects freedom of expression in totality. Guaranteeing aspects of right to privacy such as freedom from accountability, intrusion and interruption can greatly conflict with freedom of expression ideals that may require accountability and interruption in a bid to promote democracy and proper functioning of the society. Also, right to privacy aspects such as anonymity, solitude, and secrecy can greatly undermine freedom of expression as was noted in the case of Anonsen v Donahue, 857 SW2d 700 Tex. Freedom of expression often seeks to promote association in a way that promotes democracy and proper functioning of society. Therefore, rights that advocate for secrecy, solitude, and anonymity may impede freedom of expression in a great way. Apart from promoting democracy, Lord Steyn said that freedom of expression is critical in promoting transparency by allowing people to expose errors in administration of justice and in governance of a particular society (p. 93). However, this may be hampered by protection of right to privacy particularly in the guise of protecting individual’s integrity and freedom from intrusion, accountability, or embarrassment. Looking at this factor, it is clear that human rights cannot claim protection of right to privacy and freedom of expression, simultaneously. The current balance between a right to privacy and a right to freedom of expression is appropriate. While the existence of the right to privacy is recognized in various international human rights laws and treaties, some national law including the UK’s does not contain a particular enshrined right to privacy, as was confirmed in Malone v Metropolitan Police Commissioner [1979] Ch 344. In the case of the UK, there is no Act of Parliament that creates such a right and the common law allows for a limited recognition of this right in specific circumstances (The Open University, 2012, p. 91). Other human rights and in particular freedom of expression has been enshrined in the constitution and there is an Act of Parliament that creates it. When the comparison is made between the balance of the right to privacy and freedom of expression, it is clear that the scale is skewed in favor of the freedom of expression. The freedom of expression as a human right has more provisions and which are adequately enshrined in law. It is no doubt that current balance between a right to privacy and freedom of expression more on the latter’s side. This balance is appropriate in the society because it tends to promote democratic ideals, in addition to promoting self-fulfillment, transparency and accountability. As has been noted, right to privacy tend to promote anonymity, secrecy, and undermines accountability and this may undermine democracy, transparency, and accountability in the society. While the right to privacy is fundamental in the society, it should not be in such a way that it compromises societal interests while promoting individualistic interests that may be harmful to the society. As Lord Steyn aptly stated, freedom of expression is intrinsically and instrumentally important (The Open University, 2012, p. 93). Therefore, when put in a balance with right to privacy it should prevail. Freedom of expression serves broader objectives compared to the right to privacy. It promotes individuals’ self fulfillment in the society, fosters democratic ideals, and facilitate proper governance and administration of justice. On the other hand, while right to privacy promotes fundamental individual right, it may be used to undermine the broader objectives of other human rights including freedom of expression. However, this does not mean that right to privacy should be discarded; it should be allowed in specific situations that do not affect pertinent interests of the society. In conclusion, it is evidently clear from the discussion that human rights form an important part of the human society. It is for this reason that it has been adopted in international laws and treaties, regional and national laws, and in policies of private and non-governmental organizations. The assertion by Clapham that human rights simultaneously claim to protect right to privacy and freedom of expression is partly correct. As has been noted, this can only happen in a limited context where the aspects of privacy and freedom of expression are intertwined. Human rights cannot simultaneously claim to protect right to privacy and freedom of expression, entirely. The assertion by Clapham cannot be rendered entirely correct due to the fact that the right to privacy conflicts with other human rights including freedom of expression in a number of ways. In particular, it was stated that privacy conflicts with fundamental provisions of freedom of expression that seek to facilitate proper functioning of the society. In the discussion it has been stated that the current balance between right to privacy and a right to freedom of expression is appropriate. This statement has been informed by the view that the current balance ensures that the right to privacy applies to relevant situations that cannot compromise societal interests. Nonetheless, the discussion recognizes the important role of the right to privacy as a human right and advocates that it should not be discarded, but only be applied appropriately. Word Count: 2047 Bibliography Clapham, A. (2007) Human Rights: A Very Short Introduction, Oxford, Oxford University Press, p. 114) The Open University. (2012) W100 Rules, Rights and Justice: An Introduction to Law, The Open University: Milton Keynes. Read More