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Privacy in Context: The Right to Privacy, and Freedom and Independence of the Media under the Constitution of Ghana

Document Cited authorities 6 Cited in Related
Vincent
AuthorDominic N. Dagbanja
Date01 February 2014
Published date01 February 2014
Pages40-62
DOI10.3366/ajicl.2014.0079

[E]ven modern societies have differing concepts of privacy. For instance, while Germans demand closed office doors, fenced yards, separate rooms and strict person to person distancing, the Americans are content with open office doors, unfenced properties and informal rules of personal and social distance. The English on the other hand are accustomed to shared offices and bedrooms, and use ‘reserve’ rather than doors and walls to preserve their privacy. The French and the Arabs have been described as ‘sensually involved’ with individual members of their society in a manner which would be offensive to Germans, Englishmen and Americans. It has been suggested that because the Japanese and the Arabs enjoy crowding together they have no word for ‘privacy’ […] but one cannot say that the concept of privacy does not exist […] only that it is very different from the Western conception.1

D. J. McQuoid-Mason, The Law of Privacy in South Africa, Juta (1978), pp. 1–2.

 INTRODUCTION

The preceding quotation demonstrates the extent to which privacy, a universal natural right, is culturally defined and shaped. While privacy is a natural right – and a cultural universal in the sense that it is recognised in all cultures – the scope and content of privacy is very much contextual since the particular desires and expressions of privacy are dictated by the culture in a given society. Put differently, the nature and significance, and therefore, the content and scope of privacy depend on the cultural context.2

Justice Sowah in the Ghanaian case of University of Cape Coast v Anthony [1977] 2 GLR 21, at 42–3 underscoring the point that privacy manifests differently in different cultures. It is important to make an important distinction here. In submitting that the right to privacy is a ‘natural right’, this article seeks to argue that the ‘root’ to privacy lies in the very nature of human beings or even in animals as human beings or as animals. However, to the extent that there is no uniformity in the expression of the right to privacy, differences in the expression of privacy can only be explained in cultural terms. But the suggestion that privacy is something that is culturally expressed or even that it is culturally valued in all cultures, and therefore, a cultural universal, is not to, and does not, suggest that privacy is rooted in culture. At least in the opinion of this article, privacy is rooted in the very idea that human beings by their very nature as human beings have and need some sphere of space but how that sphere of space may be given recognition and protection will vary from society to society based on the ways of life of the society in question. For discussion on natural rights, see for example R. Cumberland, A Treatise of the Laws of Nature, gen. ed. K. Haakonssen, Liberty Fund (2005).

Thus, this article ascertains the scope, nature and contours of the right to privacy in the Ghanaian context. The Constitution of the Republic of Ghana 1992 (hereafter the ‘Constitution 1992’) contains constitutional principles protecting the right to privacy. It equally does so in respect of the freedom and independence of the media. Therefore, this article discusses the nature and scope of the right to privacy in light of freedom and independence of the media in Ghana. Is the right to privacy as guaranteed by the Constitution 1992 affected by free speech and freedom of the media? In answering this question, the article discusses judicial decisions on the subject to ascertain how the judiciary has resolved conflicts between the right to privacy and free speech in the Ghanaian context. It examines the relevance and place of Ghanaian culture in the cases decided by the courts and whether the cases were decided in the right way. It answers the question: is Ghana taking the right direction on the privacy versus free speech issue?

The modern claim to privacy is said to be based on a notion of a boundary between the individual and other individuals, and between the individual and the State.3

C. J. Bennet and C. D. Raab, The Governance of Privacy: Policy Instruments in Global Perspective, MIT Press (2004), p. 4.

It rests on notions of a distinction between the public and the private, on the assumption of a civil society consisting of relatively autonomous individuals who need a modicum of privacy in order to be able to fulfil the various roles of the citizen in a liberal democratic state.4

Ibid.

 However, in every legal system, rights, including the right to privacy and free media, understandably are not absolute5

N. K. Taylor, ‘The Scope of Human Rights in Ghana’, XIX Review of Ghana Law (1993–5): 84, at 88.

 and the nature of the guarantee and protection of rights is not the same either in all jurisdictions. Where one right begins, there another must or may end. This is necessary to ensure an even, balanced scale in the protection of the rights of all persons in a given society

In this regard, how is freedom of the media reconciled with the right to privacy in Ghana? Free media is essential to the nature of a free state. A free media is necessary for the effective dissemination of information for the consumption of the citizenry. A free flow of information is necessary, indeed it may be said, is a functional prerequisite for the existence and well-functioning of society. This is because open information allows individuals and citizens to make informed decisions and choices both about their private lives and on public issues. It also keeps individuals well informed of the economic and political processes. These are all necessary for the effective participation of citizens and all other persons so entitled to act in the governance process and thereby help in building a vibrant society. While a free media is essential to the nature of a free society, the right to publish or broadcast must be exercised within the limits imposed by law to protect individuals in some way. One way the exercise of freedom of the media is limited is when publication or broadcast of a matter will infringe upon the individual right to privacy. Just as freedom of the media is a limited right, so is the right to privacy. Thus society may permit, and indeed does permit, ‘encroachments upon individual's desire to be left alone, or to be free from wholesome sights and sounds’.6

G. Dworkin, ‘Privacy and the Law’, in J. B. Young (ed.), Privacy, John Wiley (1998), p. 115.

In other words

The right to privacy cannot be absolute; it must yield on many occasions to other interests which society considers to be of greater importance. Indeed the pressure of those who wish to obtain the right of privacy is often met by other pressures from those who whilst not unsympathetic to certain kinds of privacy interests, are demanding greater rights to know, to publish, to discuss and to use private information.7

Ibid.

The right to privacy is inherent in the right to liberty, but the life of the individual in all societies has to strike a balance between freedom and discipline. Insufficient freedom will subdue the spirit of enterprise and resolution on which so much of civilised progress depends, whereas unbridled freedom will clash inexorably with the way of life of others. It is inevitable therefore that there must be some measure of restraint on the activities of members of a community, and in order to control people in a modern and complex society information about them and their behaviour is indispensable. The concomitant price which the individual must pay can be measured in terms of loss of privacy.8

J. B. Young, ‘Introduction: A Look at Privacy’, in Young, supra note 6, p. 1.

 Therein lies the problem. Thus, apart from intrusions into a person's private life, a person's privacy may also be invaded by disclosures concerning the person's personal life, publicity misrepresenting the person or his or her life style, and authorised use of his or her image and likeness.9

McQuoid-Mason, supra note 1, p. 169.

 The solution then is to find a balance between conflicting interests or rights as between the rights to privacy and freedom of the media. And as the quotation at the beginning of this article shows, privacy, and rights generally, although they may originate and apply beyond the confines of culture, are culturally shaped. Therefore, the contours and scope of privacy are culturally and as such contextually shaped. Thus, although privacy may be recognised in every culture and jurisdiction, the limits to the exercise of the right to privacy may depend on the social group or culture in which the right may be sought to be exercised. It follows that balancing the right to privacy with other rights or interests will vary from jurisdiction to jurisdiction. Therefore, the discussion in this article is to look at privacy in context: how the right to privacy and freedom of the media in Ghana are reconciled.

The intrusion of privacy takes a number of different ways and forms. These include: intrusion into one's home life; intrusion into one's business; intrusion from unwanted and unsolicited publicity from biased and sensation-seeking newspaper reporting, hounding by press photographers, over-zealous exposure journalism; intrusion from the use of technical surveillance devices; intrusion by the disclosure or use of private information; and, inter alia, intrusion through the misuse of computers.10

Young, supra note 8, pp. 2–3.

While intrusion of privacy can result from any of these forms of intrusion, as indicated above, the focus of this article is on the right to privacy and the media in Ghana generally. THE SCOPE OF THE RIGHT TO PRIVACY IN GHANA The meaning and nature of the right to privacy

Human rights may broadly be categorised into the public domain and the private domain.11

Taylor, supra note 5, at 84.

With these categorisations, the human rights concept has been projected on the public sphere.12

Ibid.

 The effect of this projection is to map out areas of public life where...

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