Alhassanain(p) Network for Heritage and Islamic Thought

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Islam and the Rights of Privacy Territory

Author(s):Abbass Khajeh Piri

www.alhassanain.org/english

Note:

Human rights have always been an interesting and challenging issue of every community.

In thisbook the author has done a wonderful job in dissecting the issues regarding privacy. Whether we talk about privacy on an individual level, social, territorial Oradea any other type of privacy you will find explanations and examples that will help you understandit's importance.

Miscellaneous information:

Islam and the Rights of Privacy TerritoryAbbass Khajeh Piri , Ph. D University Professor and Attorney at Law Reference: Book of Islamic Human Rights (3) Publisher:Bethat Islamic Research Centre (BIRC) Qom - Year of Publishing: 2012/First Edition ISBN: 9766009360925

All rights reserved. Reproduction of the book with written permission from the publisheris permitted .

Notice:

This versionis published on behalf of www.alhassanain.org/english

The composing errorsare not corrected .

Table of Contents

Author's Preface 8

Introduction 9

The Importance of Privacy Right 11

The Meaning of the ‘Privacy Territory’ Concept 13

A. Being private 14

B. Being secure 14

C. Having freedom 14

The Boundary between Privacy Territory and Public Area 15

A. Features of people’s private area 15

B. Characteristics of public area 15

The Necessity of Observing the Privacy 17

The Privacy Territory Domain 19

A. Society’s Customs and Culture 19

B. Society’s Economic Structure 19

C. Society’s Political Structure 20

D. Social Security and General Interests 20

E. Other Rights and Basic Freedoms 20

Instances of Privacy Territory 21

1. Bodily and Corporeal Privacy 21

2. Mental and Psychological Privacy 21

3. Physical Privacy 21

4. Communication Privacy 22

5. Information Privacy 22

6. Personality Privacy 22

7. Religious and Economic Privacy 23

8. Marriage and Family Privacy 23

9. Dignity and Prestige Privacy 24

10. Professional and economic privacy 24

The Importance of Privacy Territory in Islam 26

The Basis of Privacy Right in Islam 27

1) The Principle of human essential greatness 27

2) The Principle of no sovereignty of human beings over each other 28

3) The principle of having no permission of interference within others’ affairs 29

4) The principle of the reverence of Muslims’ blood, possessions and honor 29

5) The principle of being private of people’s personal affairs 30

6) The principle of human beings control over his affairs 30

7) Wisdom and conscience verdict 30

Note 31

The Realm of Privacy in Islam 32

1. Prohibition of investigation and inspection 32

2. Prohibition of illegal entrance to people’s privacy 34

3. Prohibition of revealing secrets and expansion of prostitution 36

4. Prohibition of fault-finding from others 37

5. Prohibition of suspicion to others 40

6. Prohibition of Gossiping about Others 42

7. Prohibition of Any Assault against People’s Reputation 44

8. Prohibition of Tale-bearing 46

9. Prohibition of Eavesdropping 47

10. Prohibition of eyes peeping 48

11. Prohibition of Cursing and Swearing 49

Notes 49

Family Privacy in Islam 51

Notes 53

Islamic Government Duty in Keeping People’s Privacy 54

Notes 55

Legal Violation of Privacy 56

A. Causing disturbance for the public rights and interests 56

B. Disturbing others’ rights 56

C. Promotion of good and prevention of evil 56

The Principle of “Promotion of Good and Prevention of Evil” and Privacy Right 59

The Difference between West and Islam’s Perspective about the Privacy Right 61

Privacy Challenges in Today World 63

References 65

Author's Preface

In the Name of God,The All-Beneficent, the All-Merciful

When invited by the esteemed IRI's cultural attaché in Moscow, in November of last year, I had the honor to travel to Russia, accompanied by the esteemed officials ofBesat Foundation, to closely examine the grounds of expansion of cultural strategies and activities in that territory, so that we could compile an executive plan based on the existing potentials and facilities. We met different top echelon religious and cultural individuals there.

During this visit, we attended a session where officials of religious and cultural affairs of Russia and Tatars tan countries were present, in which they expressed their great interest in Islamic books,texts and even textbooks in Islamic ethics and education.

There is a population of nearly 20 million Muslims in the Russian Federation and particularly in north Caucasia and lands on the Volga riverbank, as well as Muslim and non-Muslims in other countries as addressees in the former Soviet Union who speak Russian fluently. These people have a habit of reading and studying while traveling by the public transportation system.

Translation Movement Institute started its operation nearly a year ago, by translating and electronically publishing texts related to Islamic Education. Such facts caused this institute to address the Russian community and to focus the organization of its activities on them.

Having studied the human rights in Islam for a decade, I decided to write a simplified,fluent and eloquent short book.I made up my mind to translate it into Russian before publishing it. In this text,I intended to introduce and clarify the advanced principles of human rights in Islam.

As suggested by the esteemed managing director ofBesat Foundation, it was decided that the Persian text be published simultaneously with the Russian translated text.I am thankful to the Almighty and pray that I will have the pleasure to continue my endeavors in this regard.

Abbass Khajeh Piri , Ph. D

Introduction

يَا أَيُّهَا النَّاسُ إِنَّا خَلَقْنَاكُمْ مِنْ ذَكَرٍ وَأُنْثَىٰ وَجَعَلْنَاكُمْ شُعُوبًا وَقَبَائِلَ لِتَعَارَفُواۚ إِنَّ أَكْرَمَكُمْ عِنْدَ اللَّهِ أَتْقَاكُمْۚ إِنَّ اللَّهَ عَلِيمٌ خَبِيرٌ

O mankind, indeed we have created you from male and female and made you peoples and tribes that you may know one another. Indeed, the most noble of you in the sight of Allah is the most righteous of you. Indeed, Allah is Knowing and Acquainted. (Quran, 49:13)

The issue of human rights, for being an inherent one, has a history as old as human age on the earth. The subject was bornwhen mankind came into existence on the Earth. The bigger the human society and the population grew, the vaster the human rights issuewas expanded . It has always been the source of freedom-seeking and freedom-fighting movements and it remained the eternal and perpetual ideal ofmankind.

The historians have unearthed documents in their studies and researches that are indicative of the factthat mankind stressed its natural rights and basic freedom and liberty 2000 years before B.C.

The emergence of Islam in 610 A.D. was not only the milestone, but was a golden and perpetual chapter in the human history. Because of the contents of its teachings, particularly in the human rights, itwas welcomed and accepted by the oppressed people in a vast part of the globe and found many followers .

According to a well-known researcher, thinker and scholar,Abul A'la Maududi , the people in the West have the habit of attributing every good thing to themselves and try to prove that it is because of them that the world enjoys this and that blessing, while claiming that “they originated in the West.”

They also have a habit of pretending that all the bestowments and privileges are rooted in the West, whereasthe very first historical document on the human rights, MagnaCarta of Britain, The Great Charter of the Liberties of Britain was issued by John (England's king at the time) in 1215. Though the MagnaCarta itself came into existence six hundred years after the advent of Islam, this and the subsequent documents, as valid and firm evidence, prove that the West is lagging behind Islam on the issue of the human rights. Its failure to pay attention to human dignity and its delay in its fight against oppression and tyrannywhich mankind has suffered during centuries is evident here.

When you study the concepts of the human rights in the Islamicteachings you realize that it is clearly indicative of the fact that the human rights system in the Islamic law and the teachings of the Prophet (S) are much more comprehensive and more perfect than what is claimed in the West. The reason is the fundamental difference between the two legal systems of West and Islam, inviewing mankind and his material and spiritual characteristics. In the Islamic law, criteria of humans’ erudition and wisdom, humanity and spirituality, has been paid specific attention. On the contrary, West's approachto mankind is not based on spiritual and ethical factors.

On the other hand, as ethics and religion can play the role of the strongest support backing the materialization of human rights, strengthening ethical and religious values in every society will cause expansion of support for the human rights. On the contrary, ethical downfall or ignoring religious values, because of having a negative impact, leads to violation of the human rights. Thus, if laws and regulations in forceare left unsupported by the great spiritual and ideological support of the individuals in a society, the ultimate attained consequences will not be favorable. In today's world, failure of the UN's human rights organizations and the international documents (declarations) to address religion and religious beliefs has caused it to fail to develop support of the human rights. The pathetic conditions stemming from violation of the Human Rights that we witness day-to-day around the globe is the result of the above fact.

In the series ofessays which follow, we intend to briefly introduce some of the teachings of pure, true and real Islam. We try to show the legitimacy of the Islamic laws, while comparing it with the West's flamboyant, showy and loud, but empty, baseless claims, so that everyone will know how much human being owes to Islamic teachings and to law of the holy prophet.

And of God to success.

The Importance of Privacy Right

While the issue of the privacy right stands after the right of life, this issue enjoys a significant and a special place among the principal freedoms and rights of people since it is rooted in each human's identity. Hence, itis regarded as the people's personal identities; violation of or absence of this right cause tension, violence, conflicts and mental and physical pains in the people's personal and family lives and their social relations as well.

This also destroys their personal and social security, so that revealing of people's married life's secrets, as an instance of violations of people’s privacy can have irreparably destructive effects on the continuation and unification of their married lives and leads to the destruction of their married lives, causing serious and inappropriate consequences and problems for each individual family member (including wives, husbands and children) and even their relatives.

Doubtlessly, people’s rights and assets are not restricted to their materialistic possessions and assets (such as materialistic rights). They enjoy non-materialistic rights and intellectual and spiritual assets that are of more importance compared to their materialistic ones. The most important intellectual and spiritual assets of peopleare: having legal freedoms accompanying with responsibilities, the right of enjoying personal security and immunity from others’ illegal violence and transgression of their conversations, correspondences, freedoms of speech and thought, security of people’s lives, assets, reputation, dignity and personalities.

There is no doubt that observing the people’s privacyis taken as one of the most important instances of people’s intellectual and spiritual rights and supporting it is considered the guardian of human greatness and personal identity.

Today, the issue of the privacy right is centralized, in a particular way, in the subjects about human rights especially with the development of communicative technologies, expansion of communication and possibility of easier and more accessible to people’s privacy in a cyber form.This centralization of the right of having the privacy among other rights and freedoms is because of this reason that enjoying this right causes the protection of human dignity and greatness, providing individualistic independence, adjustment and expansion of friendly and constant relations among the people of all societies, creation of a constant psychological and mental security and controlling of people’s tensions and conflicts.

On the other hand, the violation of the people’s privacy (whether individual or from the government's side) causes the creation of psychological insecurity and instability in societies, and consequently inappropriate and irreparable results in the areas of individual and social lives.

Supporting of people’s privacy against the general power owners and others has a special role in flourishing of talents and guarding of other fundamental values and human rights. It brings about safeguarding of the human’s lofty position and protecting one’s greatness.

In fact, human beings experience the meaning of the right of life with all his being when he, in his personal shelter and privacy, feels secure and safeguarding about his life, possession, dignity, personality, chastity or his work or residency place. When the sacred castle of his privacy in transgressed by the illegal andobstinate entering of others or the governments, in fact his life is threatened and his belief about life and living under the sense of insecurity and instability will be lost. Therefore, some experts considered the lack of human’s privacy safety the same as taking his right of living and destruction of his humanistic foundation.

Itcan be concluded that: people’s identities are the roots and bases of their privacy and has a close relationship with their lives and their personality structures.Although privacy is a right belonging to each individual of a society member and no one can be denied of this right or be restricted about practicing their right, it should be borne in the mind that observing this right about those people having special and social position and reputation like remarkable scientific, religious, political or art figures will be of more importance and violation of their privacy causes more negative results for them and their societies.

The Meaning of the ‘Privacy Territory’ Concept

The word ‘privacy territory’ is composed of two parts of ‘territory’ and ‘private.’ The first part means restriction and ban, and the second part means personal and being independent. According to the mentioned meanings, the first and simple definition of ‘privacy territory’is: an area that due to its specialty, first, people have the right to decide about themselves independently and exclusively. Second, others do not have the permission to enter and attend there, and the owner of the territory has the right tobe secured against any kind of interference in his private life and affairs made through publicizing of his personal information or by means of physical instruments. Furthermore, he has the right to resist and stand against any unwanted presence and transgression of others in this exclusive area.

Even though there is a general and common interpretation of this term of ‘privacy territory,’ scholars during all ages till now could not present a monotonous and decisive definition for this term due to high dependency of this kind of right to the environmental culture and conditions.Instead of that, for making known the concept of this kind of right (which is one of the most tangible and applicable rights of humanity), they expressed some specifications of that (like individualistic characteristics, religious dependency, political and social opinions and ideas, individualistic and family relationships) or attempted to determine the area of ‘privacy territory’ by separating the private area from public one and based the definition of both these two areas on distinguishing aspects of them.

Based on these aspects, the personal and private area includes just those affairs related to the person’s own life and destiny and others have no detriment or benefit from them. Public area consists of the affairs of whose benefits and detriments not only the person himself, but also others have some shares.

The absence of a decisive and exact definition of ‘privacy territory’is regarded as one of the significant challenges of today's legal systems.The basic reason for disagreements on a single definition for this right is resulted from one side from different elements that have strong effects in determining the area of human privacy (like: cultural and customs, political and economic structure, faiths and society beliefs) and vary from terms and situations point of views in different societies and on the other side from different personal and social states and positions of human, originating from his characteristic complexity and putting them together in a single and simple definition is impossible.

The necessity and significance of presenting a decisive definition for the right of privacy territory is because this causes a suitable and correct recognition of this right and provides the possibility of its safeguarding and supporting against others’ illegal violation and transgression.

To define ‘privacy territory’ as a violation-proof area of each human personal life, considering paying attention to the elements and fundamentals of this right is necessary. These fundamentals are:

A. Being private

In fact, this element is the distinguishing characteristics of the private area from the public one. What is placed in the private area is solely related to the person’s destiny; however, affairs related to the public areas are common among individuals of society and do not have any specific aspect.

B. Being secure

Security and safeguarding of a person’s privacy area against others’ violation and transgressionare taken as the main fundamentals of this right. In the territory of this right, people expect that others cannot access or interfere with their zones of privacy or find command or surveillance over them except with privacy owners’ permission and satisfaction. Security in people’s privacy causes them to be able to keep their personal life's affairs safe from other’s access and violation and to prevent these personal and special data from revealing.

C. Having freedom

On the basis of this important element, people in their own private life can determine their ways of lives freely and independently within their guarded and secure privacy and away from any pressure and imposition and without any anxiety about the disclosing of their private life information decide to what extent and under what conditions others can be informed about his personal affairs or interfere with their privacy.

The result of people’s freedom in their own privacy territory is that they can independently think either at the level of ideas or practically and act accordingly.

The Boundary between Privacy Territory and Public Area

Certainly, distinguishing between the public area and privacy territory in precise form is not a simple and easy task, especially as for determining the boundary between these two areas, some elements like cultural and religious elements, especially the element of religion, has an important and effective role. In the systems based on faith and religious principles, distinguishing of these areascan be done just by paying attention to the scales originated from the religious beliefs of a society.

Special attitudes of divine and Divine religions, Islam’s religious law in particular, to people’s humanistic identity creates a particular necessity for determining people’s privacy territory. We will deal with this issue in the following chapters with full details.

Here, for determining briefly the limits of public and private areas, we describe the features of each of them:

A. Features of people’s private area

Firstly, in the private area, people have no desire that others have access to their personal affairs and desire these affairs to be hidden and away from any surveillance or presence of others.

Secondly, in thisarea people desire to decide about their own personal and private affairs independently and away from others’ guardianship and supervision except in some cases that they, themselves, are satisfied with others’ participation in their decision makings.

From the viewpoint of Islam, in the area of privacy, the person’s behavior and manner are determined by divine decrees of religious law and the Islamic government or ruler doesn’t have any special role in this area and as far as people’s behavior and manner have no external reflection of the society, government has no right to enter and interfere with in that area.

B. Characteristics of public area

Firstly, the affairs placed in this area are common among people and all individuals of a society and this area has no personal or private aspect. Even if these affairs are taking place in people’s privacy, they have the qualifications of general aspects due to their external reflections and social influences.

Secondly, in the domain of public area, some affairs will happen, because the generalizing aspects of this area have no hidden and inaccessible features, unlike people’s privacy that its feature was keeping people’s personal affairs and secrets hidden and concealed.

Thirdly, the affairs of this area are within the power scope of Islamic state and government and the government as a protector of public order, national authority and the people’s trustee can supervise theseaffairs and put them into practice and control that nothing against the public benefits will happen.

Fourthly, in this area, the principal of free stream of information is dominant and people of the society have the right tobe informed about what happens in the society. Therefore, in a public area unlike the people’s privacy, there is no restriction in informing others or prohibition of publication which is a must and necessity in people’s privacy for prevention of revealing of their personal secrets and the government responsibility is informing and utilizing of the principal of the public supervision for managing the society.

The Necessity of Observing the Privacy

In the opinion of the experts and scholars of social sciences, the need for privacy or personal privacy is rooted in the human’s disposition and nature and human by nature desires to build a privacy safe for himself by determining a specific area in order to be alone there without others presence. Thus, people in response to their dispositions’ call by determining an exclusive area and limit consider it as their own secure shelter and find peace and security in it.Some scholars are on this idea that the need of using of the right of privacy, in fact, is not exclusive to human and is a temperamental need common between human and other animals, but the degree of the need and the scope of this right in human is wider and more specialized as he enjoys of higher degrees of power of intelligence and thinking.

The sense of human need to the right of enjoying the privacy territory has a record as old as human life. A short survey in the periods of the history of human life is eloquent of this that since the beginning of human social life, he has determined to find a secure and safe shelter for him and ban others’ presence from there.

This feeling and need are not limited to a particular society or period of human life and in all societies even primitive ones where there were no developed facilities or advanced culture, people attempted to limit others’ transgressions or presence in their privacy by considering systems and regulations.

Hippocrates, who lived about three centuries before Christ, stipulated that those educated in medicine take an oath for keeping their patients' secrets confidential.

Even today, the privacy is in the center of issues related to human rights and freedoms of the mass of the human societies. Considering the issue of privacy, particularly with the advent of modernity and its effects and influences is more in demand in humanistic societies than any other time. The rapid and wonderful developments in the communicative methods and instruments such as mass media and the inclination of such media for presenting some propagandas and publicizing people’s personal life's affairs (especially social and political celebrities) to compete each other with the aim of attracting more audiences are taken as a serious threat for people’s privacy.

Society’s access to developed equipment, technologies, modern communicative and electronic instruments, makes violation and transgression of peoples’ privacy as possible even without the people’s awareness and understanding of such violation and transgression.

Accordingly, not recognizing of one’s privacy by a person is regarded as annihilation of his individuality and within suchstate he will lose his conscience and efficiency.

Every person in his privacy finds this opportunity that away from the presence, impressions of desires, thoughts and impartment of other people of the society and just by relying on his self individuality to think and to face his own self, expose his deeds and acts to the judgment of his conscience and in this way, design the path of his future and without any ostentation and pretension, take the path of his self-correction and refinement and face against difficulties and tribulations. Otherwise a person who has no privacy because of constant and continuous presence among others is deprived of his individuality and never finds the opportunity of dealing with his own individual dimension.

The Privacy Territory Domain

As mentioned before, since the dawn of human life on the earth and the feeling of the possibility of others’ presence and interference in one’s own privacy, humans began to strive for separating and determining the boundaries ofhis own life privacy and public areas. One attempted for considering the separation of these areas as certain and non-vulnerable and determined his privacy based on definite and clear scales and regulations accompanied with determining some examples.

Determining the scope of privacy is of special importance from the point of view that from one side, the possibility of complete and fully-fledged defense of this certain and valuable right is provided; and from the other side, forbids people from transgression or violation of others’ or society individual right which is resulted from not determining a right domain for people’s privacy.

It is clear that if the determining of people’s privacy domainis based on the right and sensible criteria in addition to regarding of every person’s privacy, it guarantees the others’ rights and society benefits and its acceptance from society individuals and governments causes the stability and consolidation of people’s privacy. Otherwise, the grounds for breaking of this privacy because of the contrast between the person’s benefits and others’ or society interestsmay be formed and impedes the continuation and stabilization of practicing of this certain right.

Due to the importance and sensibility of the required criteria for determining the privacy, recognition and counting of the most important elements have direct and considerable influence on determining these criteria. Some of these elements are:

A. Society’s Customs and Culture

Generally, the element of culture in every society has a close relation and direct significant impression in determining the criteria of people’s privacy. The scope of culture includes beliefs, customs, traditions, manner of life and people’s relations with each other in a society and thesemust not be neglected .

The influence of culture is so extent that even the outward and surface structure of people’s lives in a society or the style of a building's architecture can be influential and effective in determining and distinguishing of the scope of people’s privacy.

Noticing the element of culture is in fact regarding the impediments thatare observed in a society and perhaps are not existed in other societies.

B. Society’s Economic Structure

The influence of economic structure in determining the criteria related to the privacy territory is the consequence of the economic influence on personal and social relations in a society.

There is no doubt that the kind of structure and economic situation of a society has a significant and an undeniable influence on regulating of a society people’s relations with each other from one side and with the government from another side.

It should not be expected that social relations in societies based on an open economy and capitalism be identical and the same as societies with the socialistic or common economy. Having an open or closed economic system in a society influences the regularizing of these social relations.

C. Society’s Political Structure

Among influential elements in selecting a proper criterion fordetermining the area of privacy is the structure of government and society political organizations.

The formation of political structure depends on several elements suchas: general culture of the society, historical and political backgrounds of every society and people's individual and social beliefs and tradition. Establishment of a political system in a society without considering these elements will not be durable and stable.

D. Social Security and General Interests

Doubtlessly, one of the important concerns in determining people’s privacy is the influence of this issue on the subjects of social security and general interests and benefits. Because any kind of excess and immoderation in the expansion and spread privacy area can cause the possibility of misusing of this right and violation of the public rights or endangering the social security. Thus, it is necessary to lay out the criteria for determining the scope of privacy in a way that guarantees the impossibility of misusing and any society detriments, especially social security. Where the right of a person’s privacy contrasts with the individuals of a society right of having social security, the prioritymust be taken for public interests.

E. Other Rights and Basic Freedoms

Recognized and considered individual and social rights for human beings are among the most influential elements for determining criteria for the privacy limits. For instance, limits and terms of freedom of speech in a society can have a direct and special role in determining the privacy area of the society individuals, and causes the expansion or limit the people’s privacy area.

The society individuals’ right of free using and access to information also can clearly influence the people’s privacy. It is clear that the expansion of the right of using and access to information as a constant and potential danger can be regarded people’s privacy restricting elements.

Instances of Privacy Territory

Existed limits and impediments for presenting a definite and a single definition for privacy territory causes that mostly instead of its definition, its instanceshave been expressed .

While expressing different instances and areas of privacy determines the scope of this natural right of human beings to a considerable extent, as ithas been mentioned , the disagreements on the degree of the influence of the remarkable elements for determining private criteria impede coming to a suitable conclusion about the single meaning of this right.

General Instances of privacycan be counted as follows:

1. Bodily and Corporeal Privacy

Any kind of attack and disturbance to a person’s bodily and corporeal entirety (such as hurting with harmful nuclear radiation, intro-corporeal inspections and so on) without the person’s permission, is taken as a violation of his bodily and corporeal privacy. The owner allows this right to resist against elements, caused such a violation of his privacy to defend his bodily and corporeal privacy.

2. Mental and Psychological Privacy

Enjoying of mental and psychological privacy is a certain right of all human beings, particularly in their own private rights.

According to this right, taking any action causing the disturbance or deprival of people’s mental and psychological peace or endangering this peaceis being taken as violations of his privacy. There are several elements for depriving of people’s mental and psychological security. Among them include, illegal inspections, supervisions and investigations, revealing of personal secrets and information and generally revealing of the affairs that revealing of them results in people’s disturbance and bothering and illegal and concealed keeping people under surveillancecan be mentioned .

3. Physical Privacy

Every person’s home and residing placeis considered as his privacy and any kind of illegal and without the owner’s permission entering and trespassing to this place is the person’s privacy violation. Meanwhile, any inspection or investigation into the person’s private placeis considered as a violation to his physical privacy and solitude.

Besides the person’s living place and his isolation, his working environment is known as his privacy provided by not being public and any kind of direct surveillance or using of technologies (like installing candid cameras) illegally and without the privacy owner’s permission or forcing restriction about the person’s private solitude (either in his personal working or residing place) is as the breach of this right.

Illegal investigation and inspection of people’s private affairs such as their pockets, wallets, places of keeping their personal documents and certificates, computers and other things having a personal feature is also a violation of people’s privacy.

4. Communication Privacy

Correspondences, mobile and telephone conversations, telegrams, faxes, telexes and e-mails and any communicative forms are a part of people’s privacy.

Investigation, revealing, recording, bugging, not transmitting, censoring, misusing and illegal inspection in all communicative instruments and methods, is a breach of people’s privacy.

Itshould be noted that accessing the human being to new and developed technologies and expansion of communicative instruments and equipment facilitate the possibility and violation grounds of people’s communications.

Therefore, it is necessary for privacy right safeguarding to take actions for redefining the area of this right and its violation cases in accordance with the expansion of communications technologies.

5. Information Privacy

People’s personal secrets and information consist a significant part of their privacy and revealing or publicizing of this information is regarded as a violation to their privacy area whether taking such violation of people’s information privacy is either deliberate and knowingly or arises from violating person’s mistake or imagination.

Information put in people’s privacy territory includes all their private secrets and information such as the information related to medical affairs, personal correspondences, private family life, judicial and penal cases and verdicts against them, financial and economic affairs, their jobs issues, people’s private facts and even people’s hidden and secret specifications and habits.

Considering this important point is significant that violation of people’s information privacy is not only just in cases in which the information and secrets of people are publicized wrongly and incorrectly or in the forms of the publication of slander or untruths but also even the publicizing of true and referable information about people is known as violation of their privacy. Even revealing of information whichare presented to others in professional and job-related relations (like doctor-patient treating relation or lawyer-client one) is a violation of the information owner’s privacy. Because the person receiving the information in the working area according to accepted bases and conventions about keeping the professional and job-related secrets is obliged to protect his clients personal information and secrets.

6. Personality Privacy

Every person has an independent and legal identity and personality and this specified privacy includes the person’s identification marks suchas: name, titles, family names and nicknames, his picture and social reputation (such as reputations of science, art, economics, religious etc.).

No one has the right to utilize from a person’s name, identity and reputation that are part of his privacy for commercial, business or any other purposes without the person’s permission and satisfaction. Any kind of misusing from the person’s reputation or identification marks or possessing them are evident instances of privacy violation and resulted in social and legal charges for illegal users of them.

7. Religious and Economic Privacy

Thought freedom means human beings are free in their selection of ideas without any pressure elements. This is of all human beings certain rights and is regarded a part of their privacy.

Any kind of people’s personal idea inspection or investigation about his religious beliefs by other people or governmental agents or even under the coverage of state orders and regulations is illegal and violation of people’s privacy.

Beliefs and observing religious rules are in fact themost internal dimension of a human characteristic. Hehas always been granted the right to keep his religions and beliefs concealed and obstruct his personal opinions from others’ access.

It should be noticed that these beliefs and opinions by expressing and verbalizing from their owner are taken as revealed and will be out of the circle of privacy. The feature of this kind of privacy is that it never consists of legal restrictions and violations.

8. Marriage and Family Privacy

Doubtlessly, family privacy is the most important segment of a people’s personal and private affairs. Any kind of interference or violation of family life is a violation of people’s privacy and causes charges for the transgressors and the right of defending and encountering for the privacy right owner.

In family privacy, besides the fact that other people and the government do not have the right of investigation and interference within the families’ privacy and the information and affairs of each family is only related to that family members, there is a dependant privacy among members of families that no member of the same family has the right to attempt to violate or transgress the privacy of any other family member.

In the familyarea mothers and fathers, as the main axis of family center, have special rights and privacy that other family members, specially the children, should attempt to observe these rights and privacy. Among the cases of parents’ specifiedprivacy that observing of it is a must is married and sexual privacy of the parents that has specified and exclusive aspect for them and interference with it is regarded an offense to the parents’ specified and exclusive privacy.

Meanwhile, each of the parents has a specific privacy that spouses must attempt for its safeguarding and protecting.

Accordingly, husbands have a special privacy that should be respected from their wives’ sides andwives also in particular cases have privacy that should be kept and respected by husbands.

Children as the results of marriages and members of the family, in their own turn, have privacy that not observing of it from parents and other family members can cause problems threatening family stability and durability seriously.

Generally, peace, security, independence and freedom in a family relies on this that every family member recognizes the privacy of other members of the family observe the privacy right.

It is obvious that legal interference of parents is necessary for children’s training and preventing them from deviationare considered as conventional and natural duties of parents and applying them in the determined areas and taking the element of the society culture into account are not regarded illegal violation of children’s privacy.

9. Dignity and Prestige Privacy

Prestige, reputation, chastity, credit and social fame and honesty are important parts of people’s privacy and violation of any of themis considered as personal privacy violation.

Revealing of people’s secrets and wrong and inappropriate interpretation of others’ deeds and talks, misusing of others’ correspondences and publicizing their information that result in offenses to people’s dignity and prestige or the jeopardizing of their social reputation are obvious instances of violation of people’s privacy.

To consider the title of privacy violation to the act of revealing of information and publicizing people’s affairs, it is not necessary that these revealed and publicized information and affairs or what affiliated to them be untrue or false or the revealing or publicizing person did this intentionally. Even unintentional publicizing of correct and right information and news that the owner(s) of them desires not others to access them can also cause the jeopardizing of people’s reputation and social credit and their privacyis violated either intentionally or unintentionally.

Presenting of pornographic pictures and sexy texts or publicizing of immorally personal issues of people with the aim of destroying their honesty and reputation by means of internet, satellite, telephonemessages and other forms of media is a violation of privacy, social credit and prestige.

10. Professional and economic privacy

Usually people have no desire that the information about the amount, source and ways of income, their assets and generally speaking their personal and business data be at others’ access or other people be informed of their bank accounts turnover or balances, their credits, debts, interest- free loans and claims. These data and similar information like the name and people business identity marks and names are in fact in the area of people’s privacy and violation of this kind of information is a violation and transgression of the information owner’s privacy.

Certainly, eligible government legislators have the right of investigation of people’s financial and professional information.

Nevertheless, this right firstlyhas been applied just within an area determined by the government regulations and laws (like the law of people’s income tax). Secondly, government officials who enjoy thisauthority and due to their job responsibilities have access to such information and gather them must take the information about people’s economic situation as their own professional and vocational secrets and avoid from revealing them before others.

In addition to the people’s possession of assets that is of their privacy, rights related to their intellectual possession such as inventions and innovations are instances of people’s economic privacy.

In the resolution of international congress of lawyers held in 1967 in Stockholm, 10 instances about violation of people’s privacy have been expressed, and this resolution is not of enough comprehensiveness since about five decades have passed since its issuance and due to political and social developments and a review on that seems to bea must .

The Importance of Privacy Territory in Islam

The support of people’s privacy in western legal systems does not have a long record but this right in divine religions and particularly the legal system of Islam enjoys a long background and certainly Divine religions more than any other legal systems put value and importance on this right and emphasized more on its following and observance.

In Torah and Gospel, Jews and Christians’ sacred books, there are many referrals and specific rules about violation of people’s privacyare mentioned .

The privacy right and the necessity of supporting this right in Islamic resources and the remarks of the great men of Islam is the recognition of this right this is greatly emphasized.

The importance of recognition of this right of Islam, besides the subject of its historical background and oldness (more than 14 centuries from the proclaiming of this right) is on the matter of significance from the viewpoint of the time of appearance of Islam.

The religion of Islam appeared in a situation in which institutionalized ignorant habits and savagery traditions in the Arabian Peninsula and other lands have overshadowed people’s lives to such degree that ‘the right to life’, as the most obvious right of a human being, was not supported. They buried their daughters alive with no difficulty and did not believe in any right of life or continuation of living for them.

In such a situation, Islam as a herald of human rights, insisted on the observing of all people’s privacy (regardless of their ideas and religions) and invited everyone to avoid from the violation of people’s area of privacy.

Islam never satisfies itself to express the right for human beings and in addition to expressing the right, determines its domain; the methods of accessing it and in its legal system provide the necessary executive gestures and functions to support it.

In the Islamic jurisprudence regulations, there are several rulings about the support of people’s privacy and confronting against violators and transgressors of this obvious human right. Meanwhile, the Prophet of Islam and Imams, (religious leaders after the Prophet) manners after the honorable Messenger of Islam (S) includes of many practical instances about the defense of people and personal privacy.

However, from the perspective of the religious law of Islam, increasing of knowledge and confronting ignorance and nescienceare known to be the most essential elements and instruments to reach the perfection. In the area of others’ privacy, ignorance aboutothers’ secrets and what is passing in people’s privacy is a lofty stage of knowledge and perfection. Because in this case, people encounter the sensual desires of knowing others’ private affairs andsecrets and is victorious in this struggle and with his will and insistence keeps the respect of others’ privacy.

The Basis of Privacy Right in Islam

A challenge that the western legal system has always encountered with about the human right has been the instability in the basis and the impossibility of determining a definite area for each recognized right of humanity. The fundamental reason for that is the lack of existing a determined of evaluating system.

In Islam, any human rights relies on evaluating regulations and principals which their recognition causes the stability of these rights and prevent of creating any challenges in applying them.

A fast review over the main bases of privacy right in the Islamic legal system expresses the depth of Islam perspective about this human obvious right:

1) The Principle of human essential greatness

Islamic perspective about the basis of human right (including human privacy right), unlike western materialistic and humanistic thought (which is captured by instability and not having an identity because of not considering the spiritual dimension of human being’s existence), considers the principle of human being’s essential greatness and honesty.

Islamic religious law based on the essential greatness of human beings, recognized some rights for him and one of these rights is ‘privacy territory right’ for each human being.

Human being thatis meant by Islam is a character that in addition to his physical and bodily dimensions has a spiritual and divine dimension to which from the spirit of God is blown.

وَنَفَخْتُ فِيهِ مِنْ رُوحِي

When I have shaped him and ran my created soul inhim fall down prostrating towards him. (Quran, 15:29)

Human being’s divine and spiritual dimension causes his distinction from other beings and grants his honesty and greatness.

The great Quran expresses human being’s superiority over other beings in this way that:

وَلَقَدْ كَرَّمْنَا بَنِي آدَمَ وَحَمَلْنَاهُمْ فِي الْبَرِّ وَالْبَحْرِ وَرَزَقْنَاهُمْ مِنَ الطَّيِّبَاتِ وَفَضَّلْنَاهُمْ عَلَىٰ كَثِيرٍ مِمَّنْ خَلَقْنَا تَفْضِيلًا

We have honored the children of Adam and carried them on both land and sea. We have provided them with good things and greatly preferred them above much of our creation. (Quran, 17:70)

Safeguarding and keeping of people’s greatness is dependent on the recognition and keeping ofone’s privacy and when a person keeps others’ privacy, he in fact respects human beings’ dignity and greatness. Based on this, Islam determined strict regulations for violation and transgression of people’s privacy and regarded that a fundamental strategy in its own criminal law.

Safeguarding of people’s privacy in Islamic laws is because Islam considers human beings as thebasic foundation of every construction and training and takes his dignity and privacy vital and necessary.

2) The Principle of no sovereignty of human beings over each other

From the perspective of Islamic religiouslaw absolute guardianship is exclusive to the Godly Being and just the unique God has the rule and sovereignty over all people’s lives, possession and affairs.

The Holy Quran in expressing the principle of monotheism insists on the divine absolute sovereignty:

وَهُوَ اللَّهُ لَا إِلَٰهَ إِلَّا هُوَۖ لَهُ الْحَمْدُ فِي الْأُولَىٰ وَالْآخِرَةِۖ وَلَهُ الْحُكْمُ وَإِلَيْهِ تُرْجَعُونَ

And he is Allah; there is no god except him. The praise is his in the former as in the latter. His is the judgment; to him youshall be returned . (Quran, 28:70)

Meanwhile the Holy Quran explicitly rejects any kind of sovereignty that its origin neither is nor divine:

إِنِ الْحُكْمُ إِلَّا لِلَّهِ ۚ أَمَرَ أَلَّا تَعْبُدُوا إِلَّا إِيَّاهُ ۚ ذَٰلِكَ الدِّينُ الْقَيِّمُ وَلَٰكِنَّ أَكْثَرَ النَّاسِ لَا يَعْلَمُونَ

He has commanded you to worship none except him. That is the right religion, yet most people do not know. (Quran 12:40)

Therefore, the necessity of this basic and obvious principle is that people have no sovereignty over eachothers’ lives, possessions and personal affairs except the case that for such sovereignty enough sensible reasons based on Islamic religious law are offered.

It is obvious that where there are doubts and ambiguities because of lack of any logical reasons or causes based on the Islamic religious law about the sovereignty over others, by referring to the general principle of human beings’ dignity, a verdict for removing of people’s sovereignty over each other must be issued as applying any illegal sovereignty of people over each other is against the principle of human being’s freedom and result in preventing him from utilizing his freedoms and natural rights and consequently is regarded transgression and cruelty to him.

In the regulations of illustrating religion of Islam, guardianship in the interdicted people and infants’ affairs named under the title of “non-litigious jurisdiction” is recognized and its basis is safeguarding their rights and observing of the public interests.

Additionally, sacred Islam religious law firstly legalized the sovereignty of Islamic governor that is the continuation of the great Prophet of Islam (S) and his pious and eligible successors in the framework and realm of Islamic religious law. Secondly, by considering special conditions for Islamic governor such as piety and his practical obligation to Islamic percepts, exerting the sovereignty puts him out of the circle of his personal interests. Thirdly, except in some cases that the public’s interests necessitate, the governor’s sovereigntyis just applied in the public area and private area is kept safe from his transgression as much as possible. Fourthly, for recognition and clarification of the public interests and prevention of any kind of illegal misusing and transgression of people’s privacy, Islamic religious law presented a definite mechanism so that Islamic governor has power of sovereignty within that defined area.

Obviously, Islamic governor’s sovereignty is resulted from the Divine Absolute Sovereignty, granted to him in a determined area andtill the time he has the required qualifications clearly, this sovereignty is applicable and as soon as he loses these qualifications, he will be deposed from automatically and his eligibility of sovereignty will be lost.

3) The principle of having no permission of interference within others’ affairs

In Islam’s legal system, prohibition of inference within people personal and privacyis taken as one of the strategic principles and according to it firstly, all people enjoy freedom of acting in their own private affairs. Secondly, any interference of others within people’s privacy is against the general principle of not interference and only the case is legal that the privacy owner demands such interference or permits others to interfere with his privacy.

The concept of interference does not necessarily mean taking a physical action but any concealed supervision and surveillance of others, investigation or inspection in people’s affairs or revealing of their secrets or deficienciesis considered as a kind of interference or transgression of their privacy and is in contrast within the principle of interference prohibition.

An obvious instance of this principle is the freedom of having opinions on Islam. The Great Quran rejects the unwilling of accepting an idea and stated:

… قَدْ تَبَيَّنَ الرُّشْدُ مِنَ الْغَيِّ …

Righteousness is now distinct from error. (Quran, 2:256)

In the area of privacy, although Islam determined individual obligations in the path of perfections and elevation for human beings, it has no interference in what they do in their privacy. When human being takes actions to present his speeches and deeds in public as an expression of his speeches and deeds in the area of society qualify for effectiveness, he is responsible for them like apostasy that due to its social effectiveness of Islam religion law there are particular decrees and verdicts for it.

4) The principle of the reverence of Muslims’ blood, possessions and honor

The Islamic religious law makes any violation or transgression of Muslims’ blood,possessions and honor illegal and according to this general regulation no one can transgress to others’ lives, possessions and reputations.

The Prophet of Islam (S) in a sermon expressed inHujjat al-Wida’a ’ (fare welling Hajj (pilgrimage to Mecca) among a large mass of Muslims, by emphasizing on this principle states: “O! Muslims, your blood (lives) and possessions are illegal for each other till the Doomsday.” 1

The respectful Prophet of Islam (S) takes the reverence of Muslims’ blood,possessions and honor as the reverence ofKaaba and urged everyone to keep this reverence and mutual respect.

Safeguarding of the Muslims’ lives, possessions and reputations is of the very first rights of each member of Islam’s society and besides every one’s personal obligation for safeguarding of people’s privacy, Islamic government is obliged to take necessary strategies for protection of this obvious right and face transgressors and offender of people’s lives, possessions and reputations seriously.

It should be noted that the principle of people’s lives and reputations in an Islamic society is not exclusive to Muslims and all people living in the territory of Islamic government enjoysthis right even non-Muslims and others have no right to transgress or offend them as long as they do not plot and conspire against Muslims.

5) The principle of being private of people’s personal affairs

In the eyes of Islam, a legal norm is on privacy of people’s personal affairs and being public of theses affairs necessitates proof and reasons. Therefore, investigation and questioning in affairs related to people are not accepted and legal except the cases proved by reasons are instances within a public area andis related to society and others.

6) The principle of human beings control over his affairs

The principle of human’s ruling over his own affairsis based on a narration stated from the respectful Prophet of Islam that is accepted by all Muslims unanimously that: “People have control over their own possessions.”

Although the Prophet’s statement apparently is related to the human’s control over his possessions, according to the logical principles and most importantly this principle is not exclusive to the human’s financial rights and includes all human rights such as his divine,spiritual and non-materialistic rights. According people have control over all the affairs of their rights and lives and it necessitates that they have no right to rule over others’ rights.

The Great Quran states people’s control over their destinies and lives in this way that:

…إِنَّ اللَّهَ لَا يُغَيِّرُ مَا بِقَوْمٍ حَتَّىٰ يُغَيِّرُوا مَا بِأَنْفُسِهِمْ …

Allah does not change what is in a nation unless they change what is in themselves. (Quran, 13:11)

People’s control over his affairs even includes his privacy and any illegal and without-reason control and prevalence of others’ over people’s privacy is the breach of this important base and is against the principle of human’s complete dominance over his destiny and is not allowed for anyone.

Obviously, the area of this dominance principle just includes the legal rights of human beings and those affairs that their fulfillments require corruption and its expansion or committing prohibited actions are out this principle inclusion.

7) Wisdom and conscience verdict

Certainly, unwanted and imposed inspection and presence in people’s privacy and keeping this privacy under surveillance and investigation in people’s private affairs are of such affairs that every healthy mind and pure conscience censures and every fair and healthy human regards them sins and faults.

Note

1.Sireyeh Ibn Hesham , Vol.2, P. 603