By: Koesparmono Irsan
Indonesian National Commission on Human Rights
Privacy is the fundamental human rights, which is easily found in the United Nation Declaration of Human Rights, The International Covenant on Civil and Political Rights, inside most international agreement, privacy consist human personality and covered some of the ground aspects such as free association and free speech.
Privacy has been one of the most important issues in the new millennium. Campaigns and publication about privacy are established through conference, seminars, and people gatherings. That should show us how important it is to be well informed about the variety and complexity of this fundamental rights.
In most countries, privacy is believed to be a fundamental right, which are respected explicitly in the constitution. In the smallest matter, for instance, we can find privacy policy according to article 12 of the Universal Declaration of Human Rights:
“No-one should be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attack on his honor or reputation. Everyone has the right to the protection of the Law such interferences or attacks.”
In the early ’70-s, many countries are starting to develop protection to the privacy policy in their Law. The deeds to form legal frames of Law concerning privacy policy are respected all over the world. Almost the biggest part of the rules that are especially formulated to protect the privacy policy, basically being socialized by the Organization for Economic and Development, and Council of Europe.
Later in the early 1995, the ideas of how varieties in privacy policy are acknowledged, concludes that what the world needs is more directives and clues to make all those varieties go together well in harmony. In this forum, we all know that the directives on the protection of individual with regard to the processing of personal data and on the free movement of such data sets a benchmark for national Law. Every country in the European Union (EU) has to approve the complementary legislation upon this matter to make it intact with their national Law. Nowadays, more than 45 countries have been using comprehensive data protection. These directives supposed to lead into a description of EU countries responsibilities in order to convince the European community that the people have rights to the protection of the Law in keeping their personal and private information, especially when their data and information are being processed and finally sent to the outer Europe region.
These directives or clues has to point out the responsibilities of the countries involved, to ensure that personal information linked with the European community has been protected by Law, each time those information are exported and being processed in outer Europe countries. This demand had come up with a lot of forces from countries around Europe to form a decent policy of privacy.
Setbacks on Privacy
The growth of science and technology had provided chances to gather, analyzes, and spread out information in a very sophisticated ways, that lead us to the importance of a legal protection of privacy. New developments in medical research, telecommunication and maintenance have been achieving a higher system of transportation, money transfer, and many more. Those activities have dramatically added more speed to the level of personal information. Computers with networking and processing system are being upgraded very rapidly, creating a comprehensive ways to consist data from people around the world without the need of central computers.
According to the polling statements, the fears of privacy violation nowadays are increasing, if compared to the yesteryears. It seems that the presence of anxiety from almost every world’s citizen about the violation of privacy had encouraged a number of countries to come up with a legal policy, which specifically protected the people’s privacy. The human rights activists consider that most technologies have been exported to the growing and developing countries, where people pay less attention to the protection of privacy, or maybe not at all. On the contrary, it was quite an important matter considered by modern countries. There seems to be a significant setback in the trading and sensing technology.
Nowadays, we could see the strength and capacity of informational technology, which has rapidly, grows. In accordance to all the development, the ability to reach privacy policy has also increases, as we can see.
There are many important issues, which affected the growing needs of privacy, and there are;
1. GLOBALIZATION, which erases the geographical frames in data transferring. The use of Internet connection is one popular example about world-class high technology results.
2. COVERGENCE has eliminated the setbacks in technology about the development of system that already exist. The modern information system seems to be increasing simultaneously with other systems, that enable u s to switch and swap data, process and formulate it wit other data from different system.
3. MULTIMEDIA had molded so many form of data transmission to be broadcasted, style it however to make it even easier for people to transform any kind of information into another forms.
The Definition of Privacy
It begins from all forms of human rights, which stated in the catalogue, privacy might have been the hardest matter to define. It has long historical stories attached to it. In the Bible, we could find phrases about privacy. The Bible also mention about substantial coverage for privacy. The coverage those days was emphasized in the freedom of being left alone in isolation from others.
The definition of privacy is very wide according to the content and links around it. There are many forms of privacy we know today, such as:
1. Information privacy consisting the rules for personal data processing such as account information and medical data records.
2. Bodily privacy is linked with physical protection against invasive procedures such as drug tests, and cavity search.
3. Privacy of communications protected the privacy of our phone conversation, mail and e-mail contents. It also covered other form of communication.
4. Territorial privacy connected with the limitation of accessing domestically properties and areas, such as working sites and public space.
In spite of all the lacking in finding what really defines privacy, that doesn’t make privacy to be less important matters. It’s simply because human rights itself is the aspect of privacy.
Privacy can be defined as a fundamental (but not absolute) human right. We can look it up under article 12 of the Universal Declaration of Human Rights:
“No-one should be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attack on his honor or reputation. Everyone has the right to the protection of the Law such interferences or attacks.”
In the regional state, these rights have been activated as we can see in the 8th article of Convention for the Protection of Human Rights and Fundamental Freedom 1950, which explains about:
1. Everyone has the rights to respect for his private and family life, his home and his correspondence
2. There shall be no interference by a public authority with the exercive of his right except as in accordance with the Law and is necessary in a democratic society in the interest of national security, public safety, or the economic well being of the country for the prevention of disorder of crime, for the protection of health of morals, or for the protection of the rights and freedom of others.
According to the Law of Republic Indonesia No. 39/1999 about human rights under the article 14, which explain that;
1. Everyone has the rights to communicate freely in getting all the information needed to develop their personal and social life.
2. Everyone has the rights to seek, to get, to have, to keep, to form, and to give information in any facility available.
Followed by the article 21 from the same source, that explains about;
“Everyone has the rights for personal solidness, that covered the physical and psychological aspects, and therefore cannot be used as the object of an experimental studies.”
The services provided by the Indonesian police corps are still under an extensive file on citizens whose not being accused to do criminal act, nor political disorder. The police corps still requires resumes from everyone who requests police service. Regardless of those facts, aspects on these issues are prohibited to publicize according to the Law of Republic Indonesia No. 8/1981.
Article 47 UU No. 8/1981 authorize the police to open personal mail which are delivered through a post office and other source of telecommunication, with a special permit from the head of national court, while article 49 give details that an investigator are required to kept the secrecy of the mail content, under the power bestowed upon him.
Everyone has the right to seek medical advises without restraint. The right to feel free and comfortable to openly let know any complain, either physically or psychologically in order to get healthier. People should not worry that their personal problems will be exposed to public. Therefore, article 2 UU No. 6/1963 require every paramedics not to openly share their patient’s medical records without the patient’s approval, or in the case of criminal investigation under the authorization from the head of national court.
That should prove that we have some forms of privacy protection policy, which sheltered by the Law here in Indonesia, but it hasn’t been specifically ruled in KUHP, they are wide spread particularly in post and telecommunication issues, etc. Despite of the fact that in many Asian countries, those issues have been protected in a solid decree.
Indonesia has realized that these privacy policy and personal data protection are very important matters, with the intention that we needed to make the right move to resolve them.
Indonesia has been doing a lot of compilation from the existing Laws, which reflect on the privacy policy and the protection of personal data, to let the international world know that we do concern about protecting those fundamental rights.
International Human Rights Covenant has given some particular reference to privacy as an existing right. The International Covenant on Civil and Political Rights (ICCPR), article 14th of United Nation Convention on Migrant Workers, and article 16th of United Nation Convention on Protection of The Child had apply the same sentences.
The progress in data protection
The demands to the rights of privacy are increasing in the year 1960s to 1970s because of the rapid growth of information and technology. The ability to comprehend matters was starting to get supported by computer’s systems and programs. Somehow it’s coming to the urgent need of protection in handling personal data and information. Many countries are evoked to this need, and finally generate policies about privacy. Land of Hesse, Germany, is the pioneer country, for they break new ground in making policy about data protection in 1970, and then Sweden had followed the step by forming a national Law about it in 1973. After that, The United States of America in 1974, Germany in 1977, and France in 1978 were doing the same thing.
There are two related instruments in this particular Law, which is very crucial, that is The Council on Europe’s 1981 Convention for Protection of Individual with regard to the Automatic Processing of Personal Data, and the Organization for Economic Cooperation and Development’s Guidelines Governing the Protection of Privacy and Trans-border Data Flows of Personal Data, in accordance with the specific rules that related to electronic data management. The rules involved in these two documents had become the main source of Data Protection Law in some countries. The rules consist regulation in personal information management that showed protection of information handled, from collecting them to deleting them. People have the right to access and make improvement on their personal data, are the main component of these rules.
The form of data protection in many declarations and regulations are varies only by their phase, what they all have in common are personal data information should be:
• Collected in a decent way, not against the Law
• Only being used for a specified and original purpose
• The purpose itself has to be related, not widened
• Accurate and up to date
• Deleted after the purpose have been achieved
Reasons to formulate a comprehensive Law
There are three main reasons to appraise privacy and data protection. Many countries feel the need of privacy policies because of these reasons:
• To counter violation against privacy, for many countries in Middle Europe, South America, and South Africa had stated it as the Law, which protect privacy from violation like what happened in the Authoritarian regime.
• To promote electronics trade. Countries in Asia and Canada are developing Laws concerning electronics trade. These countries have realized the anxiety experienced by the consumer whose personal data and information being sent to places in the world. Privacy policies are introduced as a part of the Law concerning those electronics trade with matching regulations.
• To make sure that the form of Law is consistent to the Law in Pan-Europe. Many countries in Middle Europe and Eastern Europe have adopted new Law based on the Council of Europe Convention and the European Union Data Protection Directive. These countries expected to join the European Union in the near future. Other countries like Canada for instance, have adopted new Laws to make sure that trading won’t be affected by the demands of European Union Directive.
The keyword of this policy is enforceability. European Union are sure that the subjects of data involved have the rights, which is strengthen by the Law explicitly. They also have the right to request help from a Lawyer or a firm to represent them. Every European Union countries will be equipped with Privacy Commissioners or a Privacy Agencies, which will be ruled under the Law intact. As an example, Hong Kong has an Office of the Privacy Commissioner for Personal Data where we can ask assistance in the matter of investigating issues of privacy and personal data violation. These commissions also give out directives about Personal Collection Statement and Privacy Policy Statement.
In Indonesia we haven’t had quite commission like what Hong Kong has, but we do realize how important it is to form one. We have prearranged proposals to our government to form a solid regulation about privacy and a commission who will be responsible to maintain it.
Conclusion and Opinion upon this matter
We have conclude several points about the subject of Privacy and Personal Data Protection, and they are:
a. The issue of privacy and personal data protection will be become a worldwide subject. Many countries have established Laws according the need of those issues, but Indonesian Law has not been completed with solid and specific regulations upon this matter.
b. The rapid growth in science and technology, the globalization, and the power of the media had urgently strengthened the need for privacy and personal data protection.
c. Indonesia, as a member of the United Nation and also a part of the world’s community has been accessing a few arrangements in privacy and personal data protection.
d. Even though many countries have concerned and come up with regulation about the issues of privacy and personal data protection, the fact is, many violations in the area of these matters are still happening. The Laws are one step behind the growth of technology that is what makes it left out. We experience the same problems in Indonesia as well.
e. The form of violation in privacy and data protection can be seen in the act of infiltration in communication, which happens even in the democratic countries. The United States Department’s Annual Review of Human Rights Violation have found that more than 90 countries around the world are involved in the act of illegally monitoring the communication of political opponents, human rights worker, journalist and labor organizer. In France, a government commission has predicted that in the year 1996, more than 100.000 infiltrations in communication by private parties will occur, and most of them are on behalf of government agencies. In Japan, the police corps recently being litigates and ended up having to pay 2.5 million yen for doing an illegal wiretapping to a communist party member. In Indonesia, wiretapping is performed for the suitable reason according to the Law and in the authorization of the head of the national court
.
f. Services provided by the Police, even in the country where privacy policy are ruled by a strict Law, still maintain the extensive file on citizens whose not being accused in doing criminal act, and also crime for political purposes.
Hongkong, 25th March 2001
KOESPARMONO IRSAN
