Nubian Rights Forum & 2 others v Attorney General & 6 others; Child Welfare Society & 9 others (Interested Parties) [2020] eKLR explained in The Bill of Rights Handbook, 5th Edition (2005) by Iain Currie and John de Waal at page 323, as follows: “More particularly, this is an interest in restricting the collection, use and disclosure of private information. It also encompasses a related interest in having access to personal information that has been collected by others in order to ascertain its content and to check its accuracy. These interests can readily be accommodated under the value of dignity since publication of embarrassing information, or information which places a person in false light, is most often damaging to the dignity of the person. But the right to privacy guarantees control over all private information and it does not matter whether the information is potentially damaging to a person’s dignity or not. The publication of private photographs, however flattering, will for example constitute a violation of the right to privacy of in this sense. So would be the use of a person’s name or identity without his or her consent. But as with the other two elements of the right to privacy, there must be a reasonable expectation of privacy. For example, a person does not have the right to refuse to provide identification to a police official when so requested.” 750. Information privacy includes the rights of control a person has over personal information. Such personal information will in the first place concern information which closely relates to the person and is regarded as intimate, and which a person would want to restrict the collection, use and circulation thereof. Examples include information about one’s health. But other information about that person may also be considered ‘private’ and hence protected under the right to information privacy, even if this information relates to his or her presence or actions in a public place or a place accessible for the public. Such information over which individuals have an interest to keep private in our view also include information and data about their unique human characteristics, which allows them to be recognized or identified by others, as it is information about one’s body and about one’s presence, image and identity, in both private and public places. 751. We accordingly adopt the definition in Kenya Legal and Ethical Network on HIV & AIDS (KELIN) & 3 others v Cabinet Secretary Ministry of Health & 4 others (supra), where Lenaola J. and Muriithi J. summarised the right to informational privacy as follows: “Article 31(c) of the Constitution must be understood in this context – it protects against the unnecessary revelation of information relating to family or private affairs of an individual. Private affairs are those matters whose disclosure will cause mental distress and injury to a person and there is thus need to keep such information confidential. Taken in that context, the right to privacy protects the very core of the personal sphere of an individual and basically envisages the right to live one’s own life with minimum interference. The right also restricts the collection, use of and disclosure of private information. 752. In light of the different facets and bases for the right to privacy, the applicable test in determining whether there is an invasion or violation of the right was laid down in Bernstein vs Bester NO (supra) as follows: “It essentially involves an assessment as to whether the invasion is unlawful. And, as with other forms of anuria, the presence of a ground of justification (such as statutory authority) means that an invasion of privacy is not wrongful. Under the Constitution, by contrast, a two-stage analysis must be employed in deciding whether there is a violation of the right to privacy. First the scope of the right must be assessed to determine whether law or conduct has infringed the right. If there has been an infringement it must be determined whether it is justifiable under the limitation clause”. 753. Specifically as regards a determination of whether there is a violation of the right to informational privacy, the Constitutional Court of South Africa in the case of Mistry v Interim National Medical and Dental Council of South Africa (1998) (4) SA 1127 (CC) stated that the Court ought to take into account the fact; (i) whether the information was obtained in an intrusive manner, (ii) whether it was about intimate aspects of an applicants’ http://www.kenyalaw.org - Page 123/174