Some Privacy, Please?

By: Bhredipta Socarana, Master of Laws (LL.M) student at the University of California, Berkeley, focusing on Law and Technology. He is also a Certified Information Privacy Professional/Europe (CIPP/E) by the International Association of Privacy Professional (IAPP). 

On January 28, 2020, the Government has officially submitted the draft of the Personal Data Protection (PDP) law to the House of Representatives. The public’s hope to better privacy protection grows dearly afterward. The draft that has been promised to provide more comprehensive protection to individual’s personal data on the internet is expected to provide clarity on the rights of individuals as owners of personal data and liabilities of organization processing electronic personal data. There has also been a certain expectation that privacy culture will exist not just between the people but also the government agency. Unfortunately, such a promise seems to be a mere promise.

At least there have been three alarming occasions where the PDP law will need more than just a law to grow privacy culture. First, the provisions that may intrude the private domain of a legitimate household on the draft of Family Resilience Law (RUU Ketahanan Keluarga). Second, the advertent disclosure of new Coronavirus patients’ personal information by a public official who revealed medical records of the suspects that are supposed to be confidential information. Third, the public official’s reaction toward a photograph of a public figure uploaded in the public figure’s own social media platform.

All of those three are unfortunately against the very foundation of the personal data protection principle. It unfolds the state of our privacy knowledge that our privacy culture is limited and still lacking to the issue of being debated in the public, which at the matter at hand is the PDP law.

The notion of privacy that has been frequently discussed in the public has become narrower than it should be. It is only being the talk of the public when it comes to the breach of social media platform or related to internet activities. Truth be told, the concept of privacy is bigger than that, yet it is simple. Privacy rises when an individual expects respect for the full enjoyment of his or her rights and property. The right to privacy occurs when an individual wishes the public community to be prevented from scrutinizing their own personal issues. The intrusion of privacy may only exist under a carefully detailed examined legal procedure.

In the United States, privacy has been discussed since 1890 through a publication by Samuel Warren and Louis Brandeis, the former US Supreme Court Justice, on the Right to be Let Alone. Throughout centuries the US Supreme Court has admitted the right to privacy to become an extension of Constitutional Rights as affirmed by its decisions and further adopted in several of its regulations. The right to privacy expands even to the right to educate a family’s own children in Meyer v. Nebraska and even the right to whom the individual may marry in Obergefell v. Hodges.

In Europe, the concepts of privacy have developed variedly between its states. However, the aftermath of World War II has unified the European nations thus admitting privacy as fundamental rights. It is then later the recognition of privacy can be found codified in the European Convention on Human Rights, and Charter of Fundamental Rights of the European Union. Both legal authorities recognize privacy as a right owned by an individual with regard to respect for such an individual’s private and family life, home, and correspondence. It is sufficient to say that based on such authorities’ privacy is not limited just on the online interaction.

Both Europe and the United States have come along way in establishing its privacy culture. However, that does not mean that the Asian nations have not set any precedence before us. The Asia Pacific Economic Cooperation (APEC) Privacy Framework and some of the Asian nations have shown that the right to privacy can be implemented properly because it is an underlying individual right of individual entangled with other rights. The three incidents mentioned above indicate the level of public perception on the matter of privacy, thus unconsciously permitting intrusion of non-electronic privacy such as privacy of behavior and action, and obviously privacy of data. The fact that many still believe privacy only exists in the electronic transaction pertaining to their personal contacts, address and other similar personally identifiable information undermines the idea of privacy protection itself. It may even dull the so-long expected PDP Law.

Departing from such conditions there is still a lot of work needed to improve the privacy culture of society. The works carried out by public society and partially the government agency must be applauded, even it may still be insufficient. Like it or not, to let right to privacy as part of our livelihood society needs to revisit the idea of sharing is caring. At the speed of around 10.51 Mbps, the internet connection allows privacy intrusion to become so much easier. The desire to know and to meddle other people’s business as part of our family hood principle, like it or not must be limited. This limitation is not only to protect the individual themselves in terms of protecting individual rights but also to protect the advancement and development of the society by allowing individuals to feel secure in exercising their private life in implementing their freedom of expression rights. Under the scrutiny of the public, it is not hard to imagine an individual will be reluctant to express themselves and contributing to the public.

Needless to say, PDP law should be the momentum for us to revisit the basic concept of privacy. To understand privacy is to practice do no harm. A consistent approach to rectify any advertent or inadvertent intrusion needs to be done to nurture respect to privacy. Only upon respecting each individual self-boundary a community may advance to its later stage through protecting ideas and expression as resulted from allowing individuals feeling secured of realizing their private thoughts. This will become more substantial in the high-rate of information sharing that happened nowadays, where knowing information of an individual is just at a click far away. So, some privacy, please?