Privacy, Technology Law and Religions across Cultures

Beginning of article

'Information law, including the law of privacy and of intellectual property, is especially likely to benefit from a coherent and comprehensive theory of information ethics ...'

Dan L. Burk

'We are at the beginning of what I call intercultural information ethics, whose aim is not just to compare similar or dissimilar concepts by juxtaposing them, or to look for a conceptual or even moral consensus--but to become aware of our mutual biases on the basis of a nuanced understanding of similarities and dissimilarities beyond the simple dichotomy between "East" and "West"'

Rafael Capurro

'Any tendency to treat religion as a private matter must be resisted.... To the extent that religion becomes a purely private affair, it loses its very soul.'

Pope Benedict XVI

1. Introduction

The debate on 'Privacy and Information Technology' has been predominantly carried out from a 'Western' perspective for over forty years. It is only relatively recently that an interest has arisen in examining where other cultures, such as those which characterise China and Muslim societies, may stand on similar issues. In an effort at contextualising the debate, this paper will set out to map where we are in the complex landscape that is the intercultural debate on privacy, occasionally pausing to get a glimpse on how we possibly got here, focusing on who the actors are almost as much as on what they have to say about the matter. In this sense it is more of an overview than an in-depth review of any one particular aspect of the privacy debate: expect an aerial view of the terrain which attempts to outline the bigger picture before enticing the reader to later plunge deeper into the undergrowth.

The terrain in this case is one marked by at least five major religions which had already started to 'go global' a thousand years and more before the Internet and commerce made globalization a popular term. Christianity, Islam, Hinduism, (Confucian-based) Chinese traditional religion and Buddhism together account for well over 5 billion adherents out of the world's 6.3 billion Population (2). While at first this may give rise to the hope that an examination of privacy across religions need only start off by seeking harmony and consensus across these five major religious systems, it will be seen that religion is but one element in a complex multi-cultural and intercultural scenario.

This paper may incidentally also provide a tiny contribution to the growing debate about the complex links between religion, law and information technology. Since its very beginnings, the relatively young discipline of Information & Technology Law has concerned itself with the flow of information within society and the resultant impact on the distribution of power within society. That particular focus has manifested itself in various ways and particularly in the long-running debates on data protection law and freedom of information legislation. The introduction of data protection law provoked a new interest in privacy as a fundamental human right and has led to a string of related legislative and judicial developments especially in countries like Germany. These developments have been variously chronicled elsewhere but have led to the inception of new rights like 'informational self-determination' and even 'on-line privacy'. (3) While some leading European jurisdictions come up with such developments, others outside Europe are considering the wisdom of signing up to the Council of Europe's 1981 Data Protection Convention (4) while some inside Europe (5) are calling for a wholesale review of the EU's Directive 46 of 1995 which is largely based on the COE's 1981 convention. These varied and sometimes apparently conflicting developments in that part of ICT law we today bundle under the umbrella of 'Privacy & Data Protection' compel us to think more deeply about the values underlying privacy, where they come from, how they have developed and where they may or should be going.

When delving deeper into underlying values, it is inevitable that one encounters religions and other cultural sources of value systems. As one asks the questions 'What is privacy? When and where did it begin? How is it enhanced or threatened by technology? What rules should one adapt or adopt?' one discovers a number of things that the debate about religion, information flows and information technology may have in common with themes that have now traditionally been explored in the field of Information & Technology Law. Thus, in the same way as we are in IT Law concerned with the distribution of power in society, we discover interest in exploring religious texts such as the Christian Bible 'in a one to one relation with political power' where 'the text is generated by the shifts of power that need to be given religious legitimacy'.(6) Indeed, from a certain viewpoint, several, if not all, religions may be studied in terms of 'information flows' and 'information technology'. The field of study of information technology and religion is vast and fascinating: it may range from how early information technology like the printing press was key in altering political power in Europe especially because of the role of printed matter in the Reformation, through how religions took to modern media for 'tele-evangelisation', to how Digital Islam has now grown to be a regular stream in one of Europe's largest IT Law conferences. (7)

It is beyond the scope of this paper to attempt to chart all the intersections of ICT Law with religion and information technology but instead the objective is far more modest if nonetheless complex. This paper will restrict itself to one value or set of values from the perspective of the intersection between law, information technology, values and religions. The case study chosen for this paper is privacy which is undeniably a universal value albeit finding different forms of expression in different cultures. Laws consist of rules which exist inter alia to protect and promote values. The main thrust of the debate launched in this paper is whether we can get religions to contribute to the formulation of legal concepts and possibly to agree about or at least not hinder the development of certain values such as privacy in a society where information technology is ubiquitous. Key ICT Law texts such as the 1981 COE Data Protection Convention cite implementation of Art. 8 of the European Convention of Human Rights as one of their primary concerns and thus the discussion will commence with an evaluation of privacy from the point of view of fundamental human rights.

2. A lawyer's dilemma?

When people sit down and sign a contract it is normally hoped that some agreement has been reached on something specific and that the signatories are clear as to what they have agreed to. This is at least as important in international law as in national law: an international contract such as a bi-lateral treaty or a multi-lateral convention can have consequences for individuals far beyond national jurisdictions and is often in effect for decades. What is one to make, therefore of the following principle 12 from the most-translated document in history, the UN's Universal Declaration of Human Rights?

'No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.'

So, if all the countries of the world signed up to this, what exactly have they agreed? The main problem is of course that nowhere else in this milestone document do we read 'For the purposes of this declaration "privacy" means "XYZ"'. Sixty years after the UN's Human Rights declaration was launched in December 1948, many scholars within different jurisdictions have engaged in a continuing debate about the definition of privacy but while this debate has yielded many valuable insights we are nowhere closer to having a universally agreed definition for a universal value such as privacy.

To complicate matters further, while the Universal Declaration contained no definition of privacy, religious differences eventually came to the fore: the UN 1948 declaration was later labelled -a secular understanding of the Judeo-Christian tradition', which could not be implemented by Muslims without trespassing the Islamic law. (8) In the 1990 Cairo Declaration on Human Rights in Islam, a quarter of the world's countries signed up to a new document which contains a number of nuances to the 1948 UN document and attempts to interpret all fundamental rights in accordance with Shari'ah Law. In Article 18, the 1990 CDHRI tends to give the impression of having developed a more detailed concept of what is understood to fall within the definition of privacy:

'(b) Everyone shall have the right to privacy in the conduct of his private affairs, in his home, among his family, with regard to his property and his relationships. It is not permitted to spy on him, to place him under surveillance or to besmirch his good name. The State shall protect him from arbitrary interference.

(c) A private residence is inviolable in all cases. It will not be entered without permission from its inhabitants or in any unlawful manner, nor shall it be demolished or confiscated and its dwellers evicted.'

This was far more detailed and arguably more restrictive than section XXII of the Universal Islamic Declaration on Human Rights of December 1981 which had read simply: 'Every person is entitled to the protection of his privacy.' Indeed, it may possibly be inferred from the later 1990 declaration that the right to privacy is largely restricted to 'conduct of private affairs in his home and among his family'. What happens outside home and familial spaces (e.g., a hotel room or the Internet) may possibly not qualify for protection under the right to privacy in terms of Art. 18 CDHRI. If in nothing else, the Muslim states are clearly in agreement with Pope Benedict XVI when he holds that religion is not simply a matter for private life. The Islamic view is that ALL of life's fundamental principles must be in accordance with religious law (Shari'ah) (9) and indeed Muslim scholars are at pains to trace the roots of most Islamic fundamental rights principles to the Quran (10). Interestingly enough, although predominantly Muslim, the Arab states did not opt for this wording in their 1994 Arab Charter on Human Rights, the revised …