Abstract
The world is moving to a global village where every kind of information relating to individuals can be retrieved through different sources, either through the internet or other sources. This perhaps necessitates the tension amongst individuals on the need for the strict protection of privacy. This need, however, is underscored by the fact that privacy as a concept is generally unknown by the common law and Nigeria courts being strongly connected to the English common finds it difficult to define and explore the scope of the term. This paper, therefore, seeks to explore privacy tracing its background, acts that could constitute an infringement on privacy while limiting the scope to privacy amongst individuals, and finally the laws relating to privacy as enshrined in different international laws/documents and Nigerian legislation
Introduction
The term privacy is a legal concept that has continued to generate a lot of controversies [1]owing to the fact that the grundnorm that is the I999 constitution as amended has not made a substantial provision to the definition of the term. Although several descriptions have been made as an attempt to provide an insight into the term. The right to privacy which has also been rightly referred to as ‘The right to be let alone'[2] centers on prerogative human freedom. It also encapsulates the individual right of an individual to be protected against intrusion into his personal life, affairs, or that of his family either by direct physical means or indirect which could be through publication[3].
The torts of privacy have been rightly explored by Professor William Prosser in his article titled ‘Privacy’ which he wrote in 1960. This article was the force that lead to the American jurisprudence on privacy. In this article, he outlined four privacy torts which include
1) INTRUSION UPON SECLUSION: This gained a foothold in the case of Jones vs Tsgie[4]
FACT: In this case both the Defendant and plaintiff do not know each other and worked at different branches of the same bank. But, the defendant had formed a common-law relationship with the plaintiff’s ex-husband and she used her workplace computer to access the plaintiff’s bank account about 174 times however, she didn’t publish or record any of that information.
In this case, three key features of the cause of action constituting intrusion upon seclusion are highlighted below
I) The defendant’s conduct must be intentional(this includes recklessness).
II) The defendant must have invaded without a lawful justification in the plaintiff’s private affairs or concerns.
III A reasonable person would regard the invasion as highly offensive, causing distress or anguish.
2) APPROPRIATION OF A PERSON’SNAME OR LIKENESS: This tort was explored in the case of Athans v Canadian Adventure Camps [5] as affirmed in Jones vs Tsgie.
FACT: The plaintiff was a water skier with an international reputation who had a distinguishing and characteristic photograph portraying him while he was skiing which he used for commercial purposes defendant was a public relations firm who copied the photograph, published it as an advertisement for summer camp for children.
The elements of this tort are highlighted below
I) Defendant made use of essential elements in the marketing of the plaintiff’s persona for commercial purposes.
II) Defendant made use of these essential elements without the plaintiff’s consent
3) PUBLIC DISCLOSURE OF PRIVATE FACTS: A person’s right to privacy includes protection against publication of facts or matters that are deemed private to the person. A typical exploration of this is in the case of Doe v N.D,2016[6] and Doe v N.D,2018[7]
FACT: In both cases, the defendant posted an explicit sexual video of the plaintiff on the internet without the plaintiff’s consent
Elements of the case include
1)The defendant publicize a matter relating to the private life of another
II) The defendant didn’t seek the consent of the plaintiff before publishing the story
III) The matter publicized or the act of publication is considered highly offensive to a reasonable person
IV) The publication wasn’t a legitimate concern to the public.
4) PUBLICITY PLACING PERSON I N FALSE LIGHT: This was introduced in the case of Yenovkian v Gulian[8]
FACT: The defendant published several videos especially on YouTube cyberbullying his children and their mother by claiming falsely that their daughter who had a neurological disorder looked ‘drugged’ and that she used to be ‘normal’
Elements of the case include
I) A reasonable person would find placing a person under such false light as offensive (The court, further distinguished this from defamation[9] in which the words which place a person in false light lower the reputation of that person)
II) The plaintiff either had knowledge of or acted in reckless disregard as to the false nature of the matter publicized and the false light in which the other party would be placed.
However, it should be noted that an action could constitute more than one tort of invasion of privacy for example if one installs a hidden camera in a bathroom where another party is undressing her herself/himself, takes pictures of the person, and used those pictures for the purpose of advertisement or commercialization such person would be liable for intrusion in seclusion, Appropriation of person’s name or likeness and public disclosure of private fact.
Constitutional protection for privacy
Constitutional protection for privacy gained a foothold in the case of Griswold v Connecticut[10]where the supreme court went against a statute that prohibits a married adult from using Birth control because it is an intrusion on privacy and violates the sanctity of the marital bedroom.
At the international level the article 12 of The Universal Declaration of Human Rights, [1948] states that: “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation. Similarly, The International Covenant on Civil and Political Rights [1966] [ICCPR] also in Article 17 provides that:
1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home, or correspondence, nor to unlawful attacks on his honor and reputation.
2. Everyone has the right to the protection of the law against such interference or attacks.
Within Africa, several laws and documents that protect individuals’ privacy are also established which are domesticated by different African countries part of which includes the Declaration of Principles on Freedom of Expression in Africa, African Commission on Human and Peoples’ Rights, [2002] Banjul, The Gambia. Article 2 states:
1. No one shall be subject to arbitrary interference with his or her freedom of expression.
2. Any restrictions on freedom of expression shall be provided by law, serve a legitimate interest and be necessary and in a democratic society.
In the same light, The African Charter on the Rights and Welfare of the Child [1990] guarantees the child with privacy rights in its article 10 which states:
No child shall be subject to arbitrary or unlawful interference with his privacy, family home, or correspondence, or to the attacks upon his honor or reputation, provided that parents or legal guardians shall have the right to exercise reasonable supervision over the conduct of their children. The child has the right to the protection of the law against such interference or attacks.
At the National level, within Nigeria, the 1999 constitution as amended in its section 37 provided for the right to privacy entrenched in the fundamental human right in chapter four of the same constitution. Section37 provided that “The privacy of citizens, their homes, correspondence, telephone conversations, and telegraphic communications is hereby guaranteed and protected.”
In light of this provision, several states have entrenched privacy rights in their individual laws as a bid to protect these rights an example is the law Reform (Torts) [11]of Lagos State in its section 29 which provides that:
(1) Anyone who intentionally intrudes, physically or otherwise, on the solitude or seclusion of another or private affairs or concerns is liable for invasion of privacy if the intrusion would be highly offensive to a reasonable person.
2) Anyone who uses the name or likeness of another in a manner and to an extent which suggests to a reasonable person an intention to appropriate the name and likeness of another or that is associated with another is liable to damages.
(3) Anyone who publicizes a matter concerning the private life of another is liable for invasion of privacy if the matter publicized is of a kind that:
(a) Would be highly offensive to a reasonable person and (b) is not of legitimate concern to the public.”
The case of Portland Paints and Product Nig LTD v Mr. Jimmy Olaghere[12] was decided in light of this law.
Conclusion
Over the years privacy right and tort of privacy has been the least litigated aspect of law [13]a typical journey to the law report of Nigeria would affirm this fact. The reason isn’t far-fetched as Nigeria which is patterned after common law courts do not recognize privacy and as such is absent in its legal system. Even though, several laws have been enacted to fully incorporate and allow for its litigation the fact that it has just begun to gain momentum in Nigeria cannot be denied. The right of privacy shares a close affinity to human dignity and as such, every state should endeavor to ensure the protection of these rights
[1] The right to privacy by E.S Nwauche
[2] See Brandeis J in Olmstead v United States 277 US 438 478.
[3] Report of the Committee on Privacy and Related Matters 1990 Cmnd. 1102, London: HMSO
at 7.
[4] See Jones vs Tsgie 108 O.R (3d) 241,2012 ONCA 32 available at <https://canlii.ca/t/fpnld>, retrieved on 2021-11-15
[5] See Athans v Canadian Adventure Camps Ltd et al,1997.
[6] See Doe v N.D Oj No 382 (Ql) — 262 ACWS (3d) 1089,2016.
[7] See Jane Doe v N.D OJ NO 5741 (QL) _277-289,2018.
[8] see Yenovkian v. Gulian, 2019 ONSC 7279 OJ No 6702 (QL).
[9] Privacy of torts: four types of invasion of privacy by David Canton and Hammid Siddiqui, 2021
[10] See Griswold v connecticut,381 US 479 85 S .Ct 1678,1965.
[11] See law Reform (Torts) l 82,laws of Lagos State 2015
[12] See Portland Paints & Products Nig. Ltd. & Anor. v. Mr. Jimmy S. Olaghere & Anor. (2019) 2 NWLR (Pt. 1657) 541
[13] Breach of
