Alhassanain(p) Network for Heritage and Islamic Thought

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