The right to privacy is central to human dignity. One cannot talk of human dignity without talking of the right to privacy.
That is why searches in criminal law must be warranted; that is why any evidence gathered on an unwarranted search is inadmissible before a competent court of law.
It, – the right to privacy reinforces the rights of association, expression and information.
Martin Scheinin in his Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, 2009, A/HRC/17/34 says that, “The right to privacy embodies the presumption that individuals should have an area of autonomous development, interaction and liberty, a “private sphere” with or without interaction with others, free from arbitrary State intervention and from excessive unsolicited individuals”.
Any activities, whether by the government or by other persons which interfere with the enjoyment of the right to privacy, such as surveillance and censorship, hacking, trade of private information like phone numbers and emails, among others can only be justified when they have been prescribed and sanctioned by law. Such sanction should have a legitimate aim, one that is proportionate to the purpose for which the sanction is being given.
It is guaranteed under Article 12, The Universal Declaration of Human Rights that, ‘No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence.’
Article 31of the Constitution of Kenya also provides that:
Every person has the right to privacy, which includes the right not to have–
- their person, home or property searched;
- their possessions seized;
- information relating to their family or private affairs unnecessarily required or revealed; or
- The privacy of their communications infringed.
The Information and communications Act, Kenya and the regulations made thereunder make provision for matters regarding privacy. For purposes of this article, though, we shall not delve into those provisions.
Do you operate a website? Does your website have a privacy policy?
What is a privacy policy?
A privacy policy is a notice which states how information given by a user voluntarily or automatically as they use your website, will be used. If you have a website where people provide their names, phone numbers, email addresses, country of residence, among other things, then you should strongly consider having a privacy policy.
We have one at Bitala & Co. Advocates. It is important to us that we ensure our user’s privacy. For example, when you sign up to receive The Deuteronomy, we guarantee that your email address will not be shared with other people. When you initiate a chat on our website, we also guarantee that the information you provide will not be passed on to other people.
So, here are some questions to guide you on the relevance of a privacy policy.
What is the use of a privacy policy?
A privacy policy is important in two ways: a) from a legal perspective b) from the client perspective.
The legal perspective
You must be forth coming with your clients about what you intend to do with their information. Since the constitution guarantees the right to privacy, you must for sure tell your clients how you will use the information that they freely give to you, information which is private in nature.
It is unacceptable to think that now that you have private information about a client, you will use it in any way you like.
A violation of a client’s privacy which may involve the dissemination (whether voluntarily or involuntarily on your part) of the client’s private information can land you in serious legal battles which you will most likely lose.
So, to be safe, have a privacy policy. Prescribe the extent to which you are going to use that information. Among other things, guarantee that the client’s information will not be passed on to third parties except if sanctioned by law. Encourage your clients to read it so that they make an informed decision on whether to provide that information, or not.
The client perspective
We all want our clients to trust us. What better way to earn their trust other than guaranteeing that their private information will not be passed on to third parties?
Earning a client’s trust goes a long way: client retention and attraction of new clients all revolve around a client’s trust. Note that if your target customers believe that you should have a privacy policy, then it is to your benefit if you have one.
It is now common knowledge that a credible website will have the bare standards for their user’s privacy.
What if I don’t have a privacy policy?
Well, it all revolves on whether your users provide information about them.
Do your users have a sign in/up place where they enter their names, email address, phone number and such other information? Do you sell some things on line and therefore require your users to give in their credit card numbers? If yes, then you need a privacy policy that covers how you will use that information.
The lack of a privacy policy may expose you to law suits. No one can tell the date and time when that exposure is to happen. So to be on the safe side, have a privacy policy and let it be brought to the attention of your uses as soon as possible.
If, however you do not collect any private information on your website, then you are under no obligation to have a privacy policy. This implies that you do not foresee any exposure to law suits, exposure which might arise on account of you misusing your users’ private information.
Let it be well noted that a poorly drafted privacy policy creates liability when violations occur.
How do I get a privacy policy?
It all starts with a phone call or an email to your lawyer.
Depending on your industry, your lawyer will advise on what you need to include in your privacy policy. Your lawyer will then proceed to draft you a policy which you can share with your users.
However, do not:
- A) Steal your policies from someone else’s business. This exposes you to charges of copyright violation. More so, what you are stealing may not be relevant to your business.
- B) Assume that your competitor’s privacy policy meets your needs.
- C) Write it yourself unless you know what you are doing. Hire us, the experts. We have expertise in writing policies for any industry
A privacy policy goes a long way in protecting not only your clients but also yourself.
By having a privacy policy, you are ensuring that your personal information is also kept private. For example, if one of your users decides to hack your website; on top of national laws, your recourse may also lie in your privacy policy.
Do not wait to have one!
Call us, text us or even email us today, and we shall be happy to help.
BY SAMALI BITALA
This article appears in our newsletter, The Deuteronomy Vol 6, Issue 3 of September 16th, 2016