The ambiguous and unknown status of this right in the legal system of the Islamic Republic of Iran comes at a time when the progress of science and technology has provided new means and methods for interfering in the privacy and privacy of people, at the disposal of profit-seeking, extortionist, biased and exploitative individuals; from the emergence of camera-equipped mobile phones to equipping governments with the most advanced spy and investigative devices. Also, lie detectors and projection tests can be mentioned as technological achievements in this field that have made it possible to interfere in the private lives of citizens in the easiest possible way and without attracting attention.
One of the most important challenges facing the right to enjoin what is known and forbid what is not is the claim that it conflicts with the right of citizens to enjoy privacy. This point is relevant not only in Islamic countries but also in other countries. Hujjat al-lslam Dr. Muh. Mahdi Kariminia, although a member of the faculty of the Holy Qur’an University of Sciences and Education, is very interested in this field due to his legal education. In this exclusive note, he analyzes the right to “privacy” in Imami jurisprudence, Iranian law, and international law.
What is privacy?
In general, it should be said that the privacy of citizens is the area of each person’s personal life that they do not want others to access without their permission. The most important areas and boundaries of privacy are: homes and private places, the body of individuals, information, communications, and the like. The privacy of citizens, which is sometimes referred to as the “right to privacy”. This right is one of the fundamental human rights that protects them against the invasion of their private lives by others and the undue interference of governments.
In the constitutions of most countries, privacy has been directly or indirectly considered, and at least the inviolability of housing, mail, reputation, and the privacy of communication has been mentioned; so that since the early 1970s. The development and enactment of ordinary laws to protect privacy has begun, and almost as a comprehensive movement has led all countries to adopt laws and regulations on privacy.
Privacy in Islamic Sources
In Islamic sources such as the Holy Qur’an and Islamic narrations, there are numerous provisions regarding privacy and individual freedoms; such as: the right to property, prohibition of surveillance, the principle of innocence, prohibition of suspicion, prohibition of spreading obscenity, prohibition of insults, satire, slander, backbiting, prohibition of betrayal of trust, etc.; Therefore, although the exact term “privacy” is not used in Islamic sources, the examples and categories of privacy are emphasized in detail.
Privacy in Iranian Law
A similar situation is observed in the Iranian legal system; that is, the term “privacy” is not used in Iranian laws, but its concept is supported and emphasized in other terms and titles; such as Articles 22, 23, 25, and 39 of the Constitution of the Islamic Republic of Iran; Articles 580 and 582 of the Islamic Penal Code stipulate punishment for illegal entry of judicial and non-judicial government employees and agents into individuals’ homes, and for opening, seizing, destroying, inspecting, confiscating, opening correspondence, and eavesdropping on individuals’ communications and telephone conversations.
In addition, Chapter 3 of the Criminal Procedure Code, entitled “Searching and inspecting homes. Places and discovering instruments and tools of crime,” provides regulations on the privacy of homes, places, and individuals.
Ambiguity in the concept of “privacy”
Despite its importance, privacy has not been properly explained and its limits have not been specified, so that it can be protected from encroachment by other individuals and governments. Therefore, one of the most important necessities of this issue can be considered the ambiguous and unknown status of this right in the legal system of the Islamic Republic of Iran and the problems and dilemmas that arise from this ambiguity. The approval of some laws by the legislator has caused problems in the relationship between citizens and the government and has fueled distrust and disputes. Many citizens consider some of the existing laws to be government interference in their private lives and react negatively to them.
On the other hand, the ambiguous and unknown status of this right in the legal system of the Islamic Republic of Iran comes at a time when the progress of science and technology has provided new means and methods for interfering in the privacy and security of people, at the disposal of profit-seeking, extortionist, biased and abusive individuals; from the emergence of camera-equipped mobile phones to equipping governments with the most advanced spy and probe devices. Also, lie detectors and projection tests can be mentioned as technological achievements in this field that have made it possible to interfere in the private lives of citizens in the easiest way possible and without attracting attention; Interventions that tarnish the reputation of people for many years, violate human dignity, honor, and dignity, cause suicide or crimes among members of society, cause suspicion, anxiety, psychological insecurity, frustration, and distrust among members of society, and many other sinister consequences that have no effect other than inflicting irreparable blows on the body of society.
Inadequate Islamic Research on Privacy
Islam plays an important role in establishing the necessary rules and standards in social relations. On the one hand, it recommends the privacy of individuals, and on the other hand, it emphasizes the need for security in the Islamic society; because by observing these two, life and social interaction will follow its stable and correct path.
In the meantime, the duty of governments in ensuring the security of members of society and the privacy of individuals is very serious and important. In recent decades, in all countries, many scientific discussions have been raised on the need to observe “citizens’ privacy” and even in the constitutions of some countries, a separate chapter has been dedicated to “citizens’ privacy”.
Although some instances of privacy have been implicitly and sporadically mentioned in Islamic sources and the Iranian legal system; However, given the global approach to the independent and comprehensive formulation of the “Citizens’ Privacy Law”, it seems that the time for inaction and negligence in this field has passed, and after a century of lagging behind the caravan of jurists and the Western legal system, it is necessary to conduct more research and studies in this field, and inspired by the sublime spirit of Islamic law, to write articles, books, and research and investigation in this field.
The necessity of informing and stating examples of privacy
In addition to the necessity of formulating and approving the “Law on the Protection of Citizens’ Privacy”, informing and explaining the examples and limits of privacy is another necessity of this issue; because merely formulating a law in this field, without providing the necessary awareness to the segments of society, makes the proper implementation of the law difficult. First of all, academic and seminary scientific centers should show interest in explaining this important issue, and then other segments of society, especially law enforcement officers and enforcers, should be aware of the various dimensions of citizens’ privacy.
The duty of governments regarding privacy
Protecting the privacy of individuals is one of the most important human needs, and governments are obliged to respond to this social need by enacting appropriate laws and rights in this regard; because citizens feel secure and at peace if they consider their personal lives, especially the privacy of their homes and places, to be safe from any invasion and aggression. Therefore, protecting the privacy of individuals is done in order to protect social, political freedoms and freedoms of expression and belief so that citizens can live comfortably in society with a sense of security and not be afraid to express their opinions and beliefs; in this case, the ground for people’s participation and cooperation with officials will definitely be better prepared, and any chaos and insecurity in society will be prevented.
Concept of Privacy
“Privacy” is derived from the word “haram” meaning prohibition. The Amid dictionary defines it as: “That which is forbidden and not permissible to touch, the surroundings of a house or building, a place that must be protected and defended.” “Private” also means exclusive, personal, special, and particular. (Ibid.).
Since “privacy” is a new term, its literal definition has not been found in dictionaries. However, its literal meaning is somewhat clear. What is important is what does “privacy” mean from a legal or political perspective and what examples will it include?
Despite the fact that privacy is recognized as one of the most tangible, objective, and widely used rights for every individual; but the world’s leading experts have not yet been able to agree on a single definition of it; As the Dutch Minister of Justice, Mr. Polak, stated at the Sixth Conference of European Ministers of Justice: “Privacy is a vast field that cannot be defined.”
The reason for this is that privacy is a broad and flexible concept that varies from time to time and place to place and is not the same for all individuals. On the other hand, privacy is subject to the social customs and morals of human societies, and such matters are not the same in different societies. It is natural that the values, customs, and traditions of societies differ from each other; therefore, privacy is not the same.
The absence of a complete definition does not indicate the unimportance of this concept; to the extent that one author declared: “All human rights are aspects and dimensions of the right to privacy.”
In the 1890s. A judge of the Supreme Court of the United States, Louis Brandeis, first raised this issue as a serious and explicit legal debate in an article called “The Right to Privacy” and defined citizens’ privacy as “the right of individuals to be alone.”In his opinion, privacy is the most fragile of rights and its protections should be mentioned in the Constitution.
After this first definition, in other definitions, privacy was understood to mean “confidentiality,” that is, the right to hide some matters from others, speech and intimacy, the right to remain anonymous, and the protection of human dignity.
It seems that the definition of a committee called the “Culcutt Committee” in England has been able to cover the various dimensions of this concept more than other definitions. The Committee believed that, although it has not yet found a good and satisfactory definition of privacy, it accepts the following definition as a legal definition:
“The right of individuals to be protected against unauthorized intrusion into the affairs and lives of individuals and their families, by direct physical means or by the dissemination of information.”
Some consider privacy to be “the right to control the disclosure of personal information” and consider its roots to be derived from ancient rights that stem from the right of individuals to property and the need to respect it; while some experts have referred to this right as the right to conceal the facts of one’s personal life from others.
The above definition is criticized because since this definition lacks legal components, it is better to say: the right to privacy is an aspect of human life that cannot be invaded by others. Some experts have referred to it as the “right to immunity” and the right of a person to his or her personal affairs.
Components of Privacy
In light of the above definitions, it seems that several components should be considered in defining this right:
First, the scope of this right concerns issues that are solely within the scope of individuals’ personal matters and that the right holder has no desire to disclose; therefore, with these issues becoming impersonal and the existence of a connection between them and society, it can no longer be referred to as an exclusive right.
Second, the disclosure of part of individuals’ private information and violation of their privacy cannot be a reason for disclosing the rest of the information or distributing and republishing the undisclosed part. Therefore, the right to privacy can be defined as the scope of an individual’s completely personal information that has no connection with society in general.
Obviously, these issues may be subject to specific conditions based on general rules and regulations or, if special conditions exist, be made available to other individuals; However, none of them can be a reason for the general disclosure of these secrets and materials, the disclosure of which, in a smaller scope, does not entail a specific prohibition.
Privacy is considered one of the most fundamental and essential human rights and is directly and closely related to the human personality. Therefore, privacy has also been introduced with other definitions; such as: “The right to be left alone”, “The right to be treated with discretion or to privacy”, and “The right to keep on”.
Examples and samples of privacy
Due to the difficulty of defining the privacy of citizens, some have tried to mention examples and samples of privacy:
1- Prohibition of entry into personal, family or home life;
2- Prohibition of physical, intellectual and cultural freedom;
3- Prohibition of eavesdropping;
4- Prohibition of disclosing the secrets of personal life;
5- Prohibition of misusing the name, personality and appearance of individuals;
6- Prohibition of surveillance, monitoring and surveillance;
7- Prohibition of disclosing letters and correspondence.
Also, due to the difficulty of providing a definition for the privacy of citizens, some have tried to provide several definitions for it to introduce the different dimensions of privacy; such as:
Privacy is the right to be alone;
Privacy means limited access by others to a person and the ability to create barriers against unwanted and uninvited access to a person;
Privacy means secrecy and hiding some matters from others;
Privacy means control over personal information;
Privacy means protection of personality and dignity;
Privacy means the right to the world of intimacy and dignity of humans.
Definition of the Independent in Privacy
From the above, privacy can be defined as follows: “A domain of an individual’s life that the individual typically, habitually, or with prior notice expects others not to access information about that domain without his consent, or not to enter that domain, or not to look at or monitor that domain, or not to otherwise violate him in that domain.”Citizens’ private homes and places, individuals’ bodies, personal information, and private communications are among the most important examples of privacy. Unauthorized entry into private homes and places, physical stops and searches, interception of all kinds of conversations and communications, access to personal information, disclosure of private matters in society, and investigation into the affairs of others are also considered among the most important examples of privacy violations.