Cyber Law & Islamic

EthicsCICT3523

Rights and Privacy

DEFINITION & SCOPE OF THE RIGHT TO PRIVACY The electronic community is faced with a

dilemma : the tug of war between the desire for a free flow information and the need of privacy.

Privacy has been defined as “the claim of individuals groups or institutions to determine for themselves when, how and to what extent information about them is communicated to others”.

The simple definition is “the right to be let alone”.

DEFINITION & SCOPE OF THE RIGHT TO PRIVACY Generally it can be defined as the quality or

condition of being secluded from the presence or view of others; the state of being concealed; secrecy.

However, it is undesirable to adopt this definition because not every secret information is subjected to privacy protection and not everything that is disclosed loses its privacy characteristic.

It suffices to say that the term 'privacy' refers to the privilege owned by an individual from any interference by other(s) with any of his/her private activities so long as these activities are not illegal and do not harm other(s).

DEFINITION & SCOPE OF THE RIGHT TO PRIVACY It is claimed that privacy does not need

specific legal recognition because when there is illegal intrusion to the right to privacy, the plaintiff can claim for remedy under the existing legal doctrine such as defamation; or breach of intellectual property rights; or breach of confidential information; or even breach of contract or trust.

However, the existing legal doctrine is not sufficient to protect one’s privacy.

THE SOURCES OF RIGHT OF PRIVACY The right to privacy is recognized

as a fundamental human rights as declared in Article 12 of the Universal Declaration of Human Rights and Article 17 of the International Covenant on Civil and Political Rights.

Some countries recognize this right as constitutional right of individuals.

EXAMPLES OF PRIVACY CASES IN DAILY TRANSACTIONS Computers are able to collect a lot

more information in circumstances where few records were previously gathered.

Consider the use of debit and credit cards as opposed to the cash payment. A purchaser using a credit card in a retail

store will record the amount of transaction, the time and the date, and the identity and location of the purchaser.

Cash payments normally leave no such trail.

EXAMPLES OF PRIVACY CASES IN DAILY TRANSACTIONS Many automated teller machines operate in

this way as part of the system of a financial institution.

Being online permits transactions to be processed immediately, the impact on the parties to the transaction is instantaneous.

This will allow the operator to determine the exact location of those concerned.

Moreover, the sharing of a network may allow the parties to it to gain access to information not previously available to them.

PROBLEMS ARISE IN LIEU OF ONLINE PRIVACY

Cookies. Online services can track and

record our activities. Online services can access

information in our computer without our knowledge.

ONLINE PRIVACY AND THE LAW The U.S has taken a sectorial approach to

privacy by enacting laws that apply to specific industries and practices.

Among the examples of Act: Privacy Act 1974 Electronic Communications Privacy Act

1986 Video Privacy Protection Act 1988 Children’s online Privacy Protection Act

1998

ONLINE PRIVACY AND THE LAW This approach is different from the

European nations, Canada, Australia, New Zealand and Hong Kong. These countries have enacted data

protection laws which cover the full medium of uses of personal information.

In protecting consumer privacy, the committee that plays a vital role is the Federal Trade Commission (FTC).

Electronic Communications Privacy Act 1986 Covers e-mail privacy in a workplace. This Act prohibits unauthorized interception and

accessing of e-mail, which fines up to $10,000 and up to one year imprisonment.

The law however includes certain exceptions permitting e-mail service providers to intercept and access e-mail as part of the activity necessary to provide the service.

The employers also are being prevented from monitoring the employee’s e-mail except if the employer’s policy allow this practice and the employees know about it.

Inbox Privacy Act 1999 To prohibit the transmissions of

unsolicited commercial electronic mail.

A person is prohibited from initiating the transmission of unsolicited commercial electronic mail to another person if such person declines to receive it.

Identity Theft and Assumption Deterrence Act 1998 The fear of identity theft plagues

the information age. Identity theft can range from

unauthorized use of our credit card to someone creating “or duplicate” complete one with our birthday and social security number and leaving us with a pile of unpaid bills.

Children‘s Online Privacy Act 1998 A child is an individual below 13 years old. The FTC has established new rules for website

operators to make sure that kids privacy is protected while they are online.

Under the Act, the websites directed to children or collect information must post a notice of their information collection practices that includes: Types of personal information they collect. How the site will use the information. Whether that information will be forwarded to the third

party. Website operators are required to get parental consent

before collecting, using or disclosing personal information about a child.

Privacy Protection Act 1980 The government employees cannot

raid or search newspapers, books, broadcast materials and including electronic items from the publisher unless it believes that the criminal offence has been committed to which the materials related or immediate seizure is necessary to prevent death or serious bodily injury.

Financial Privacy Act It restricts government access to

the financial records of any financial institution’s customer.

Exceptions: If the information is relevant to a

possible violation of any statue or regulation.

Also records needed to claim in bankruptcy, government loan, loan guarantee, etc.

SHARI’AH RULINGS ON RIGHTS (AL-HUQUQ) Definition of haqq; Right, power and claim. Haqq is a power, whether material or spiritual, that

the law has granted to a person over another person, over property, or others.

Musa “a benefit (maslahah) which the law giver has granted to the individual, or the community, or both.”

Khafif “what is a proven by a syariah for the benefit for a man.”

Dariri “an exclusive appropriation of power over something, or a demand addressed to another person which shariah has validated in order to realize a certain benefit.

SHARI’AH RULINGS ON RIGHTS (AL-HUQUQ) All of these definitions recognize four

essential requirements of haqq. It is something proven or established by the

authority of shariah. The right-bearer may be an individual or God. The mukallaf (legally responsible person) to

whom the haqq applies is bound by a duty to respect it.

For a right to exist, there must be affirmative permission in the Shariah or, failing that, there must be no prohibition against it.

THE AUTHORITIES Al-Qur‟an 24: 27

“O you who have believed, do not enter houses other than your own houses until you ascertain welcome and greet their inhabitants. That is best for you; perhaps you will be reminded”.

THE AUTHORITIES Al-Qur‟an 24: 58

“O you who have believed, let those whom your right hands possess and those who have not [yet] reached puberty among you ask permission of you [before entering] at three times: before the dawn prayer and when you put aside your clothing [for rest] at noon and after the night prayer. [These are] three times of privacy for you.”.

THE AUTHORITIES Al-Qur‟an 49: 12

“O you who have believed, avoid much [negative] assumption. Indeed, some assumption is sin. And do not spy or backbite each other. Would one of you like to eat the flesh of his brother when dead? You would detest it. And fear Allah; indeed, Allah is Accepting of repentance and Merciful.”.

THE AUTHORITIES Hadith

“The lowest of the people to Allah on the day of Judgment will be the man who consorts with his wife and then publicizes her secret”.