The surveying of privacy in jurisprudence and laws
Amirkhanlou MohammadSadiq (MA of jurisprudence and law , Islamic AzadUniversity of Babol)
Introduction
According to their nature, humans keep domains as their privacy and seek refuge in it. life will be possible in this private safe shelter and ( humanity ) will be significant : such as personality and reputation , honor , house and workplace and property. Intractable and arbitrary entrance to this sacred castle is like killing people and collapsing their humanity wall.
If we have ever worried about rich and developed countries , we would have confronted with a universal problem by entering developing and deprived countries into the digital world,: because the done university research show that " MAHITA Privacy " is an ultra cultural subject . Special kind of concern about privacy is the difference between cultures. 1
In this paper, It has been tried to get to survey various aspects of privacy, so after presenting the definitions and generalities about different aspects of frontage andsupport and privacy, different aspects of privacy such as personal freedoms, liberty of work, liberty of possession, and … and also kinds of immunity including immunity of housing and correspondence, and ... specially from Quran and Islamic traditions point of view have been discussed. And it also includes the opinions and views of Imam Khomeini ….( God's mercy upon him ).
Definitions and Generalities
A) Support and frontage
Support literallymeans backand capture, protect and help. Frontage literally means something that is illegal and can't be taught .2 support,generally is the part of the features and traits of one's that others can't interfere in it without one's permission.
B ) privacy
In spite of the right to privacy has been known as one of the most tangible and the most objective and applicable rights, for everyone, but still the world's prominent experts couldn't agree on one definition; because among all cases of human rights, definition of privacy, is more difficult and more complex and it extremely depends on the culture and context and environment in which it acts. The lack of a complete definition does not mean less importance of this concept; as the author states that “all cases of human rightsare aspects and dimensions of the right of privacy." 4
Privacy is imaginable and applies at least in two concepts:
In the first concept, it means anintangible and Private Domain of a human individual life, it equals to the English term Private Domain. In the second concept, which of course is also based on connive in interpretation, it means people's right in being inviolable of privacy in the first concept, and it can also be called the right to enjoy privacy, which of course for the sake of abbreviation, the term privacy, further used in the latter concept.
In this concept the termof privacy equals to Private Rightor The Right to Privacyin English. 5however, it is difficult to present a consensus of definition of the term, butwe trytopresent a brief definition to be close to the mind.The followings areexamples of presented definitions bywestern thinkers:
1.The person right to be abandoned.
2. Ones Willingness to decide freely under what conditions and to what extent,they, situation and their behavior disclose to others.
Each of these definitions are trying to show important elements and principles of privacy .Here,not wanting to judge and evaluate each of these definitions , we need to say that the basic element of privacy is humans' authority and freedom in deciding about the extent of knowledge and interference of others toward their personal lives.
So it can be said in the second concept, privacy means people’ prime right in immunizing their private domain from any illegal interference and remonstrance and also prohibiting others from knowing of the information of the domain. in this concept the phrase privacy equals the term right to privacy.
6 The history of minding to the privacy right
Accepting and identifying privacy as a human right, has a deep root in history. In the Bible, it has been regarded so much to this subject and in Jewish laws, from old times occulting personal affairs from others, has been recognized . In the Hippocratic Oath of 300 BC, the physicians swore to keep a private relationship with patients. 7 Issue of privacy has been much regarded and dignified. in " Qur'an and prophetic traditions.
One of the agents of English Parliament in named William Pitt, wrote : " Even the poorest people can disobey the king's orders in his humble shack. the poor man's shack can be so humble, its roof shake and seep, the wind and storm be blown in, but the King of England can' t enter it and none of the king's forces don’t dare to step in the threshold of this ruined shack. " 8
Universal Declaration of Human Rights which was spread in 1948 , can be considered as the modern index of keeping privacy in an international level which it supports specially the communicative and place limit. According to the Article 21 of this law :"people's privacy, family , home and correspondence , prestige and reputation should not be molested or troubled. Every person has the right to be supported against such troubles ."
Therefore, and since then ,in many international treaties of human rights , privacy has been recognized as a "right" . the treaties include Article 17 of the International Covenant of Civil and Political Rights , Article 14 of the UN Convention on the Immigrant Workers' Rights and Article 16 of the Organization Convention on supporting the children.
Privacy Subjects are dividable into four classes:
1 -Privacy in places and houses (Territorial Privacy): Individuals' prime right to be immune from invasion and aggression and generally all their enclosed or blockaded places. It is concerned with placing a set of limitations and supervisions into individual's workplace and life environment and public spaces too. Invensions into an individual's territorial privacy typically comes in the form of video surveillance, and or ID checks.
2- Physical privacy (Bodily Privacy): persons' right to be supported and immunized their physical being from any invasion thereof, such as aspects of physical and mental health and also their physical private features which be concerned with genetic testing, drug testing and such like,too.
3 –Data Privacy (Information Privacy): The term means immunity of data related to the domain of the human life that human expects others not to be accessed without permission and they will not be processed and actually includes Individuals' prime right to keep private and prevent from education, processing and spreading their personal data, unless in explicit cases of law which includes approval to the laws that personal data like Individuals' financial data, medical records,and public information can be controlled. This domain is also known as " data protection ".
4 -The privacy of communication (Communication Privacy): persons right for security and being immunized the contents of all forms and means of their correspondence and communications, electronic e-mail, telephone conversations, and other forms of communicative behavior and apparatus.
The principle of munificence
Munificence literally has been used in different meanings likemunificence,generosity, forgiveness ,remission, honor, magneficence , precious object ,copious , honorable and ... 9 Munificence is a concept which can be seceded from collection of some personality integrities. on the other hand, it's a word used for whatever isadmirable and satisfactory . 10 Islam like all liberal schools, believes in Munificence and value for human and introduces him to the Caliph of God on the land and this is the greatestexcellence and altitude which has been granted to human by GOD.
Human munificence and God's substitution means indefinite valuing to human and recognizing human rights and believing in great prophecy for him in society. there are numerous verses and narratives about the munificence. one of them is the verse 70 of Al-Isra: "verily we have honored the children of Adam. We carry them on the land and the sea and have made provision of good things for them, and have preferred them above many of those whom we created with a marked preferment."
" و لقد كرمنا بني آدم و حملناهم في البر و البحر و رزقناهم من الطيبات و فضلناهم علي كثير ممن خلقنا تفصيلا ".
And we honored much Adam's children and we mounted them on land and sea and we alimented them by any clean food and granted him perfect excellence to lots of our creatures". The origin of human munificence is based on that Quran says: After creation of Adam ,GOD blew out His soul in him (نفخت فیه من روحی ) and appointed him as his caliph and substitute on the land and preferred him to many of His creatures.( انی جاعل فی الارض خلیفه )11
Prohibition of aggression into the privacy from an Islamic aspect
Everyone has two personalities in society the personality that he lives among people with it and the one which be dealt with it.The distance of these two personalities among people is comparative. these two domains may be wholly opposite in a person and may be of more equality in another one. Anyway the principle of being two personalities is undoubtful for individuals, so nobody like to be clear his personality and behavior and act rise from private and internal personality for others and they consider aggression to this frontage as their smiting personality and wasting munificence".
Breaking individualsprivacy actually is hitting and insulting to human munificence and the Quran knows it so absurd. The Qur'an regards to the privacy breaking in a verse and ordered us not to follow it and has said: "( یا ایها الذین آمنوا اجتنبوا کثیراً من الظن ان بعض الظن اثم ولا تجسسوا ولا یغتب بعضکم بعضاً أیحب احدکم ان یأکل لحم اخیه میتاً فکر هتموه و اتقوا ا... ان ا... تواب الرحیم ) O ye who believe! Shun much suspicion; For lo! Some suspicion is a crime. And spy not, neither backbite one another. Would one of you love to eat the flesh of his dead brother? Ye abhor that ( so abhor the other)! And keep your duty (To Allah). Lo! Allah is Relenting, Merciful.
Translation:O you have believed, prevent from a lot of suppositions that some of them are sin, and don't be a spy and don't backbite others.Do any of you like to eat his dead brother's flesh? Youdislike it, fear Allah who is the Beneficent ,the Merciful . (Al-Hujurat / 11 ) thinking about others is breaking into their private domain and it has been related to breaking human munificence. the verse above prohibits absolutely all spy because it will be clear for people many things which are in opposition with individuals external personality and men will be unvalued and nothing from others' view in society.1
The Messenger of Allah(peace be upon him) said : " انی لم اومر ان انقب عن قلوب الناس و لا اشق بطونهم " 13 I don’t have duty to quest the people's secret and latent. and also Imam Sadiq ( peace be upon him ) said : " لا تفتش الناس عن ادیانهم و فتبقی بلا صدیق " 14 Don't ask about people's believes and tenet to be lonely and without any companion.
Freedom in Islam
Some people like Aristotle believe that God has created two kinds of men. Free and slave. But, Islam considers all human beings free and knows the basis on freedom . For example, Imam Ali (peace be upon him) says in Nahj-Al-Balaqah الناس کلهم احرار الی من اقر علی نفسه بالعبودیه )Or elsewhere Imam Hassan (peace be upon him) says:(لا تكن عبد غيرك و قد جعلك الله حرا) 15 . The Holy Quran says in this case: ( و لله العزه و لرسول و للمومنین ولکن المنافقین لا یعلمون )
when might belongeth to Allah and to His messenger and the believers; but the hypocrites know not .(Al-Munafiqun / 8 ) Freedom is one of the symbols of privacy , so no one has to and has the right to deprive others of this natural right
Personal and Civil liberties
Personal freedom can be called Absolute freedom and Body freedom. it is one of the most important individual rights and it means that one is free in commuting and selecting home in and or out of country and also life and private relations and to be secure of all aggression and remonstrance to his existence and property and home and life. The personal freedom is the basis and foundation of rights and freedoms, because until the human doesn't have freedom or security, using other rights and freedoms will be nonsense for him, too. for example, when one is arrested or in prison or basically doesn't have personal security, it won't be possible for him to enjoy work freedom, communities liberty, and political liberty, too. will in fact be no idol of personal freedom , of liberty , he would be lost . The right to personal liberty also includes some right and basic and several key points are as follows :
1 – The Right to live
2 - Freedom of commuting and selecting home
3 – immunity of home and housing
4 – immunity and or private security
5 – immunity of correspondence , telephone conversations , telecommunications and ...
6 – freedom in private and domestic life . 16
Conclusion:
Islam believes in great value and munificence for human and introduces him to the Caliph of God on the land and this is the greatestexcellence and altitude which has been granted to human by GOD. Everyone has two personalities in society the personality that he lives among people with it and the one which be dealt with it. The distance of these two personalities among people is comparative. these two domains may be wholly opposite in a person and may be of more equality in another one. Anyway the principle of being two personalities is undoubted for individuals, so nobody like to be clear his personality and behavior and act rise from private and internal personality for others and they consider aggression to this frontage as their smiting personality and wasting munificence .Personal freedom can be called Absolute freedom and Body freedom . it is one of the most important individual rights and it means that one is free in commuting and selecting home in and or out of country and also life and private relations and to be secure of all aggression and to his existence and property and home and life. The personal freedom is the basis and foundation of rights and freedoms, because until the human doesn't have freedom or security, using other rights and freedoms will be nonsense for him, too.
Footnotes:
1.Samara Jiva , Rouhan , " class distinct in privacy " Message magazine of UNESCO , No.380 , Sep.1380, P17 , according to Dr. Mahdokht Boroujerdi, Internet Communications Researches Center
2. Moein Mohammed ,Persian Dic.,Vol 3 , PP. 9196 and 8904
3. Maleki Mahla , Penal Support of privacy .MA Dissertation, P 27
4 .Volio Fernando Legal Personality Privacy and the Family" in Henkin
The International Bill Of Rights Columbia University Press, the same one according to Ms. Dr.Boroujerdi
5 . Aslani HamidReza ,Rights to complaint
6 . Aslani the same one
7 . Samara Jiva , Rouhan , " class distinct in privacy " p21 , according to Boroujerdi
8 . Speech on the Excise Bill 1763, according to Boroujerdi
9. Research Mirror magazine, P44, No.102, the munificence in Quran
10 . Majma-Al-Bayan, Vol 6, P152, the word munificence
11 . Public Liberties and Human Rights, Dr.Manuchehr Motemni, P186
12 .Research Mirror magazine, No102, Human munificence in Quran, Soltani Mohammad Ali
13 . Kanz-Al-ommal , Vol. 3 , No. 53051
14 . Mizan-Al- hekmah , Vol. 1 , P 193
15 . Nahj-Al-Balaqe,translated by Mohammad Beheshti, letter 31
16 . Public Liberties and Human Rights, Dr.Motemni
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