DEFINITION
Privacy as defined by Wikipedia ‘is the ability of an individual or group to seclude themselves or information about themselves, and thereby express themselves selectively.’
Privacy as defined by Merriam Webster dictionary is ‘the right of a person to be free from intrusion into or publicity concerning matters of a personal nature.’
Privacy as defined by the Blacks Law Dictionary 8th Edition is ‘The right of a person and the person’s property to be free from unwarranted public scrutiny or exposure.’
INTRODUCTION
As a general rule, private information should not be shared, unless with the authority of the communicating parties or as provided by the law. Due to its sensitivity, private information ought to be protected since if made public or fell unto the ‘wrongs hands’ irreparable harm would be suffered. For instance, Section 22 of HIV AND AIDS PREVENTION AND CONTROL ACT No. 14 of 2006 forbids disclosure of any information concerning the result of an HIV test or any related assessments to any other person except with the written consent of that person and only under certain circumstances.
In this era, private and sensitive information are contained or stored digitally and can be found in our mobile phones, personal laptops, tablets etc in the form of data such as private messages, emails, photos, mobile money transactions, sensitive information between people, confidential information with your bank, lawyer, police, witnesses, doctor, pharmacist, counselor, pastor etc. The list is inexhaustible.
The right to personal autonomy is broad in as much as a particular thing can belong to a person.
This article in a nutshell only examines laws that protect private information and more specifically in digital form or data.
GOVERNING LAWS
The Right to Privacy is protected under the following salient provisions of Acts of Parliament:-
- Article 31 of the CONSTITUTION OF KENYA 2010 states as follows:-
Every person has the right to privacy, which includes the right not to have:-
(a) their person, home or property searched;
(b) their possessions seized;
(c) information relating to their family or private affairs unnecessarily required or revealed; or
(d) the privacy of their communications infringed.
- Section 31 of the KENYA INFORMATION AND COMMUNICATIONS 411A makes it an offence for a licensed telecommunication operator to intercept a message sent through its system or disclose to any person the contents of a message intercepted under it.
- Section 83 U makes it an offence for unauthorized access to computer data unless one has the express or implied consent, or has statutory power for the purpose of obtaining information.
- Section 83 Z makes it an offence for Unauthorized disclosure of password.
- THE KENYA INFORMATION AND COMMUNICATIONS (CONSUMER PROTECTION) REGULATIONS, 2010 Rule 15 Provides that “……a licensee shall not monitor, disclose or allow any person to monitor or disclose, the content of any information of any subscriber transmitted through the licensed systems by listening, tapping, storage, or other kinds of interception or surveillance of communications and related data.”
- THE DATA PROTECTION ACT No. 24 of 2019 which Commenced on 25th November, 2019 was enacted among other things to make provision for the regulation of the processing of personal data; to provide for the rights of data subjects and obligations of data controllers and processors;
- Sections 25, 26 and 27 protect customers’ personal data by putting in place Principles and obligations of personal data protection.
As seen by the above few sections it is unlawful for a person (the mobile network operators included) to divulge or disclose private information. The Right to Privacy is however not an exclusive right.
LIMITATIONS
There are some situations where the right to privacy is superseded. In certain scenarios private information might be needed by a third party. Below are some of the instances as stipulated under law:-
- Section 93 of the KENYA INFORMATION AND COMMUNICATIONS 411A allows for disclosure of information which is made for the purpose of facilitating the performance of any statutory functions of the Commission; or in connection with the investigation of any criminal offence, criminal and civil proceedings.
- Section 35, 36 and 36A of the Prevention of Terrorism Act No. 30 of 2012 provides for the interception of communications for the purpose of obtaining evidence of the commission of an offence (Terrorism) under the Act by the National Security Organs and The Police.
- Section 36 of the National Intelligence Service Act (2012), empowers the National Intelligence Service Act (NIS) to obtain a warrant from the High Court and get private information in respect of a person suspected to have committed an offence to the extent that the NIS needs to investigate any threat to National Security or to perform any functions.
Read our next article on the emerging issues on the Right to Privacy.
