Nubian Rights Forum & 2 others v Attorney General & 6 others; Child Welfare Society & 9 others (Interested Parties) [2020] eKLR protection in return seeks to protect the human dignity of an individual.” 747. The right to privacy has also been expressly acknowledged in international and regional covenants on fundamental rights and freedoms. It is provided for under Article 12 of the Universal Declaration on Human Rights, Article 17 of the International Convention on Civil and Political Rights, Article 8 of the European Convention on Human Rights and Article 14 of the African Charter on Human and Peoples’ Rights. 748. The scope of the right to privacy is therefore incapable of definition, and may be described as a bundle or continuum of rights which have a variety of justification. The Indian Supreme Court in Justice K.S. Puttaswamy (Retd.) and Another v. Union of India and Others Writ Petition (Civil) No. 494 of 2012 summarised the holdings in various Court decisions on the right to privacy, and expounded on the scope and aspects of the right to privacy, including the protection of informational privacy as follows in paragraph 232 : (i) “privacy has always been a natural right, and the correct position has been established by a number of judgments starting from Gobind. Privacy is a concomitant of the right of the individual to exercise control over his or her personality. Equally, privacy is the necessary condition precedent to the enjoyment of any of the guarantees in Part III. The fundamental right to privacy would cover at least three aspects(i) intrusion with an individuals physical body, (ii) informational privacy and (iii) privacy of choice. Further, one aspect of privacy is the right to control the dissemination of personal information. Every individual should have a right to be able to control exercise over his/her own life and image as portrayed in the world and to control commercial use of his/her identity. (ii) The sanctity of privacy lies in its functional relationship with dignity. Privacy ensures that a human being can lead a life of dignity by securing the inner recesses of the human personality from unwanted intrusions. While the legitimate expectation of privacy may vary from intimate zone to the private zone and from the private to the public arena, it is important to underscore that privacy is not lost or surrendered merely because the individual is in a public place. Privacy is a postulate of dignity itself. Privacy concerns arise when the State seeks to intrude into the body and the mind of the citizen. (iii) Privacy as intrinsic to freedom, liberty and dignity. The right to privacy is inherent to the liberties guaranteed by Part-III of the Constitution and privacy is an element of human dignity. The fundamental right to privacy derives from Part-III of the Constitution and recognition of this right does not require a constitutional amendment. Privacy is more than merely a derivative constitutional right. It is the necessary basis of rights guaranteed in the text of the Constitution. (iv) Privacy has both positive and negative content. The negative content restrains the State from committing an intrusion upon the life and personal liberty of a citizen. Its positive content imposes an obligation on the State to take all necessary measures to protect the privacy of the individual. (v) Informational Privacy is a facet of right to privacy. The old adage that knowledge is power has stark implications for the position of individual where data is ubiquitous, an all- encompassing presence. Every transaction of an individual user leaves electronic tracks, without her knowledge. Individually these information silos may seem inconsequential. In aggregation, information provides a picture of the beings. The challenges which big data poses to privacy emanate from both State and non-State entities. (vi) Right to privacy cannot be impinged without a just, fair and reasonable law. It has to fulfil the test of proportionality i.e. (i) existence of a law (ii) must serve a legitimate State aim and (iii) proportionate. 749. The protection of informational privacy is what is specifically in issue in the instant Petition, and is provided for in Article 31 (c) of the Constitution. The scope of the right to and protection of informational privacy is http://www.kenyalaw.org - Page 122/174