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International Journal of Law and Management
Government’s civil liability towards individuals’ privacy in cyberspace
Ameneh Malmir Mohammad Malmir
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Ameneh Malmir Mohammad Malmir , (2015),"Government’s civil liability towards individuals’ privacy
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IJLMA
57,2
Government’s civil liability
towards individuals’ privacy
in cyberspace
98
Downloaded by Universitas Muhammadiyah Malang At 20:42 27 March 2015 (PT)
Received 21 October 2013
Revised 21 October 2013
Accepted 23 December 2013
Ameneh Malmir
Department of Management, Malayer Branch, Islamic Azad University,
Malayer, Iran, and
Mohammad Malmir
Iranian Central Bar Association, Tehran, Islamic Republic of Iran
Abstract
Purpose – One of the main manifestations of the application of modern information and
communication technologies which is considered by governments is the concept of e-government.
Design/methodology/approach – Developing economic and social interactions requires the
government to interfere in people’s private affairs; the issues that were formerly part of the private
rights of citizens are now influenced by public rights and actions resulted by the government’s
regulation.
Findings – To provide their individual freedom and welfare, human beings consider it necessary to
respect the privacy of each other; they do not want to be watched over or their personal information and
secrets to be revealed.
Originality/value – Many international laws have been legislated in this regard to respect
individuals’ privacy and prohibit natural and legal persons from accessing the information; this must be
observed by governments, too.
Keywords Privacy, E-government, Civil liability of the government
Paper type General review
International Journal of Law and
Management
Vol. 57 No. 2, 2015
pp. 98-106
© Emerald Group Publishing Limited
1754-243X
DOI 10.1108/IJLMA-09-2013-0042
1. Introduction
Nowadays, the relationship between governments and citizens is in such a way that
social management, in its general terms, is unavoidable in citizens’ social and individual
life for progressing and performing social, economic, political, cultural, educational and
communicational programs. Developing social and economic interactions requires
governments to interfere in people’s private lives and in issues that were formerly
considered as private rights of citizens, and they are now influenced by public rights and
actions taken as the results of government’s dominance.
To provide their individual freedom and welfare, human beings consider it necessary
to respect the privacy of each other; they do not want to be watched over or their
personal information and secrets to be revealed. Right to privacy is a right that prevents
the government or any individual to intervene and violate individual’s privacy through
both ethics and law. Privacy as a social value and legal right includes a wide range of
rights related to individual independence which is known as “being alone and free from
the attention of the public” and “not watched or disturbed by other people”. Regarding
the relationship between individuals, privacy also determines the right to control the
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information about people. Principles of privacy have a long history and have continued
their growth and development in spite of the increasing threats of modern technologies.
Government’s role is not merely to provide information and services; in addition to
communicating with citizens and the private sector, it can also make strategic
communications between organizations and public sectors. Such an interaction can
improve collaboration between state agencies and can facilitate the implementation of
state policies and guidelines (Ebrahim and Irani, 2005).
2. E-government
E-government, as a term, includes using information technology, especially the Internet,
in providing public services with greater ease, more customer-friendly, more
economical, more differently and totally in a better way. In a broader definition,
e-government can be defined as adoption of any type of information and communication
technology by the government (Hughes, 2004, p. 259).
Numerous definitions have been offered for e-government, but these definitions seem
to be largely similar. Two definitions presented here: e-government is a way for
governments to use new technologies and provide required facilities for convenient
access to state information and services with higher quality; in addition, it also creates
more opportunities for public participation in democratic processes.
According to “Economic Cooperation and Development”, e-government-government
is “the use of information and communication technologies, especially the Internet, as a
tool for achieving more efficient government”. (OECD, 2003, p. 23). It is worth
mentioning that e-government is not solely limited to the executive sector; it also
includes legislative and judicial tasks in different levels ranging from central and local
ones (e-government in its narrow sense is conveying e-government-commerce concepts
from the private sector to the public sector). According to a UN report on
knowledge-based societies, e-commerce includes using electronic documents instead of
paper for doing commercial or state tasks. According to this definition, e-commerce is
not just confined to trading and the private sector. Therefore, this concept refers to
electronic services and electronic administrative systems in the public sector; electronic
services means providing information, programs, strategies and public services which
are done electronically and all day (Tat-Kei Ho, 2002).
Changing governments into electronic ones was made much later than private
sectors. Advances in information and communication technology provide many
facilities, such as the opportunity to offer better services to customers in searching and
controlling people’s lives. Protecting people’s private lives and their safety is an
important aspect of e-government.
3. Privacy
Defining privacy is widely associated with environmental and context conditions.
Various definitions have been proposed for privacy in international documents and
different laws.
Privacy is marking the boundary line which allows the society to enter the private
affairs of a person. Privacy is the realm of private life which a typical person does not
allow himself to violate in any condition by understanding society needs. Individuals’
tendency to their own dignity is the most important objective of privacy. Privacy is the
area which includes determined actions, behaviors and thoughts that the person has not
Individuals’
privacy in
cyberspace
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revealed and is not willing to reveal. In fact, privacy is the secret treasure of a person’s
behaviors, actions and inner thoughts. Private property, home, work, personal data,
private communication, clothing and personal stuff are all examples of privacy. In
addition, different privacies can be distinguished such as psychological privacy and
communication privacy. However, this research focuses on the privacy of information.
Privacy of information involves gathering, using and distributing personal information.
The right to protect private information also includes the right to control the disclosure
of and access to personal information. In other words, it is the right to the level of
confidentiality and secrecy. Collecting sensitive information without the permission or
knowledge of the person can be considered as a potential weapon in the hands of those
in power. It is obvious that most people act differently in public; in such conditions, it is
natural for an individual to act cautiously and in a limited way. People have the right to
be protected by law and this protection also involves information privacy. Therefore,
this value is not less than other fundamental values, as in the era of information culture,
some privacy is required for security and prosperity of human beings.
Others know privacy as the right to leave one on his own, the right to be free from
unreasonable personal intrusions or the right to decide how much of his personal
information can be given to whom. Some others know privacy as “the right to be alone”
or “the right to itself” knows.
With the above definitions, it is found that there is currently no agreement on a
universal definition of privacy, although great efforts have been made to this end. There
is also no agreement on the definition of the word “loneliness” and certainly no single
definition can be achieved of what it means. Therefore, American lawyers offer a typical
analysis of that: “Reasonable expectation of the right to privacy”; for example, those
who wish to speak on the phone typically want to keep their conversation private, while
those getting together in a public ceremony or café typically expect to be heard by others
(Ansari, 2002). Iran’s e-commerce law monitors the protection of personal data and
personal messages. Article 58 of the law decrees this issue:
Storage, processing and distribution of personal data message indicating ethnic or racial
origins, religious views, moral characters and the individuals’ data about physical, mental or
sexual state of them without their explicit consent is illegal under any title.
Furthermore, Article 59 of the Constitution stipulates that if the person agrees on
revealing his information, the content of the message must also be consistent with the
rules adopted by the Iran’s Parliament; then, having the following conditions, the
message can be stored, processed or distributed in e-commerce:
• Its objectives must be defined and clearly explained.
• The size of the message must be only as small as required and must be
appropriately used for the prescribed purposes.
• Message must be accurate and up-to-date
• The person who is the subject of the data must have access to computer files
containing his personal messages to complete or remove his wrong and
incomplete messages.
• The person who is the subject of the message must be able to remove his complete
computer files containing his personal data.
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General rules for the protection of individual’s privacy are included in the most
important human right documents, but no specific agreements have not been made yet
in this field at the international level (Nouri and Nakhjavani, 2004, p. 52). Some
resolutions have been considered in UN legislations regarding the consequences of new
technology development and adoption on individuals’ privacy. Protection of
individuals’ comfort and privacy regarding automated informing systems has been
reflected in the European Convention at the regional level (Albrecht and Zaymon, 2001).
Considering the protection of individuals’ privacy, the protection of secrecy of
correspondence in international conventions must be mentioned. In this respect,
international human rights declarations (adopted on 10 December 1948 in the UN
General Assembly) stipulates in Article 12 that:
No one shall be subjected to arbitrary interference with his privacy, family, home or
correspondence, nor to attacks upon his honor and reputation. Everyone has the right to the
protection of the law against such interference or attacks.
Islamic Declaration of Human Rights (OIC states) stipulates in Article 118 that:
• Everyone has the right to live in peace and be secured about his family, religion
and property.
• Everyone has the right to be independent in his private affairs of life (such as
home, family, property and communication) and spying or monitoring that
damage his dignity is not permitted; he should be protected against any coercive
interference in such affairs.
• Housing must be respected in every case; no one must be allowed to enter
illegitimately or without the permission of its residents. The house must not also
be destroyed or confiscated and its inhabitants must not be displaced.
International Covenant on Civil and Political Rights legislated the same thing in Article 17,
which was passed in 1966:
• No one shall be subjected to arbitrary or unlawful interference with his privacy,
family, home or correspondence, nor to unlawful attacks on his honor and
reputation.
• Everyone has the right to the protection of the law against such interference or
attacks.
The Iranian Government accepted and joined to this commitment in 1975.
Also, according to Article 9 of Iranian Civil Code, General Regulations that are passed
between the Iranian Government and other governments are considered as law, and
ultimately, it is necessary to carry out such international rules.
In Iran’s constitution, protection of data and privacy are forecast in several laws.
Some of them are mentioned here.
According to Article 22 of the Constitution of the Islamic Republic of Iran: “the
dignity, life, property, rights, residence and occupation of the individuals are not
allowed to be violated except in cases prescribed by law”.
Article 25 of the same law stipulates that willful inspection of letters, record and
disclosure of telephone conversations, disclosure of telegraphic and telex communications,
censorship and willful failure to transmit them and eavesdropping are forbidden in case
Individuals’
privacy in
cyberspace
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except it is done by the order of law. This Article discusses respecting some aspects of
privacy.
Paragraph 3 of the law of duties and authorities of the Ministry of Communications
and Information Technology, which was passed in Iran’s Parliament in 2003, also
stipulates that:
[…] protection of any parcels and not recording or revealing them as well as not recording
telecommunications and informing network transfers and the information about natural and
legal persons is, according to law, part of the duties of Ministry of Communications and
Information Technology.
Iran’s legal sanctions and deterrent punishments enacted in 1996 predicted the
executive guarantee of violations of regulations. But regarding civil liability, the
government should refer to regulations of civil liability.
4. Government’s civic responsibility toward the citizens
E-government brings with it the possibility of searching into private lives of citizens
living in a community. Using the Internet and e-mails leads to easier access to
individuals’ records and backgrounds compared to a conventional telephone
communication. Internet information and e-government mails can be stored for a long
time and can be accessed easily. Thus, police and intelligence agencies can easily search
some keywords in all e-mails, while the traditional way for listening to phone calls or
mailing lists was very time-consuming. Technically, each level of police resources could
take more people under examination and monitoring. For example, the Central Bureau
of Investigation (CBI) has developed programs to permeate the networks and can collect
required information and investigate e-mails of suspects. As a law which was passed in
2000, British police can ask the owners of Internet companies to install some systems for
overhearing networks and investigating e-mails and control the transferred data in
network through that. Other states such as Singapore have brought to pass such laws
(Hughes, 2004).
Computer security has also recently declined. Hackers have managed to find ways to
influence government computers. Systems of electronic use of credit cards are
insufficient; it is necessary to implement digital signatures and other safeguarding
actions before ubiquitous use of electronic bank accounts and paying debts. Another
issue related to privacy and security of personal life is the ownership and the use of
information, especially through extensive rent of information technology (IT).
According to Bellamy and Taylor, more than 30 per cent of Whitehall’s IT has been
rented. Such an action remains a limited number of companies with a strong strategic
position for the government of Information Age (A’rabi, 2002). Moreover, some cases
have been observed of controlling and using of personal information of British citizens
by computer companies which own the information. Although the main issue was
information ownership and privacy, discussions about the nature and quality applied
control over commercial value of information about customers have not so far been
released for public awareness, neither have they been resolved. Public information can
be used to detect certain types of goods through data mining techniques as well as
combining them with innovative marketing. If the information related to the birth of
children was accessed by private sectors, it could be used for direct sales of goods
(Pourezzat, 2001). If there was no information security, private institutions involved in
medical care could sell their information to insurance companies and they would use it
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to calculate insurance risks. Although governments can use their available information
for commercial purposes, the fact is that the government better protects people’s private
information compared with the private sector. To exclude the private sector from access
and use of government information, strict ethical standards and restricting laws are still
required. In total, according to The Economist (24 June 2000), e-government is faced with
a major problem:
Individuals’
privacy in
cyberspace
The fact is that the more efficient the government, the more information it would have about its
citizens. The power increase (exponential progression) has led to government’s ability in being
aware of private lives and civil liberties. Citizens’ satisfaction and constant vigilance is the
price that electronic citizen pays for his satisfaction.
103
Currently some conventions for using information, laws regarding the private lives of
individuals and the like have been proposed by governments, but private lives’ aspects
and security of e-government more than anything else are a matter of concern (Hughes,
2004). Today the privacy of people is exposed to risks that have not ever existed before
IT; this is like having no risk of electric shock before the advent of electricity. We must
be careful now that the development of technology does not ruin the privacy of people.
Who is responsible toward these risks and what solutions should reduce this insecurity
feeling are the questions that are raised regarding this issue (Khaki, 2002).
In recent decades in Europe, most concern was about the government’s role in
creation and use of databases containing citizens’ information. Although securing
information by the governments was not a new matter, computerized documents
immensely increased the possibility of tracking them by individuals. The thick folders
were replaced by databases and a copy of the file could be reproduced without requiring
specific space. As a result, governments had more chance to use them compared with the
past, as it was not formerly cost-effective or there was no budget for that. Thus, there
was a growing desire for governments to store much more information about people to
retrieve them when needed. They included everything from fingerprints, addresses,
relatives and jobs to social and political activities.
Another problem of IT is that for people to maintain their privacy, they are forced not
to do many things that they previously did. According to Human Rights, this causes
restriction in civil liberties and autonomy of people and spoils their independence, which
is not accepted at all. However, these laws often differ from Islamic culture to Western
culture (Faqihi, 2001).
Nevertheless, it should not be overlooked that electronic databases have many
important benefits; higher efficiency, better and more equitable distribution of social
benefits and better and more effective surveillance in preventing crimes are among the
most important benefits of that. For violating the privacy of individuals, governments
typically highlight these benefits. But, ultimately, they failed to satisfy public opinion
toward violating this right and the very issue forced the USA to legislate that public
agencies that do not have any clear function and are not sufficiently justified are not
allowed to establish a centralized and comprehensive database of individuals to target
their privacies. Some other countries have taken steps and have created institutions that
support individuals’ privacy. Given the sufficient authority, these institutions are able to
regulate and control governments’ actions and private sectors that deal with these types
of information. But, it seems that many critics of these laws and institutions have failed
to meet people’s expectations (Danayifard, 2003).
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As a result of technical developments, easier applications and cost reduction, the
private sector had a crucial role in creating databases that contain information about
people and this information had a great value. Thus, individuals’ information was
collected in private institutions such as companies that determine individuals’ financial
validity, firms which regulate insurance and those that send postal parcels. This
integration brought added value that many other companies are willing to pay a lot of
money for having this information, as they were able to advertise their products without
spending a lot of money by just sending them to the e-mail addresses collected by a
company. Today, the accumulation of these addresses has been very valuable and great
interest has been found in it. If ethical systems are not defined for them, it is possible to
seriously harm individuals’ mental and inner peace and lead society to experiencing new
challenges.
The mentioned advantages and disadvantages of IT make it difficult to easily decide
about these issues and formulate a systematic evaluation. It seems that discussing this
issue is one of the most important issues in the various cultures of the world;
particularly, Iran’s community with having special features requires a special argument
that fits various aspects of its religious and Islamic culture. Another point to be
mentioned here is that it should not be neglected that Western principles and patterns
are not efficient and applicable to Iran’s community; cultural features of the society
should be taken into account in developing moral values and ethical visions (Deziani,
1997).
Discussing ethics in IT is not limited to the issue of privacy; it also includes other
important topics that must be covered under different titles and articles. It is hoped that
those researchers interested in these kinds of discussions help members of the Board of
Education (Jalali Farahani, 2005).
Article 1 of 1976 on civil liability stipulates that, anyone who intentionally, without
legal justification or because of recklessness, damages an individual’s life, health,
property, freedom, dignity or business reputation or something alike which causes
someone’s material or spiritual damage is liable for damages caused by his actions.
The third chapter of the e-commerce law (Articles 58 to 78) concerns the protection of
personal data.
The laws regarding the agencies that provide online services stipulate as follows:
• Paragraph 15 states that the disclosure of private affairs and violating the privacy
of their personal information is prohibited; paragraph 16 also declares that
publicizing the information that contains encryption keys of information banks,
special software, mail boxes or breaking technique is also prohibited.
• Paragraph 17-19 states that any unauthorized intrusion into centers holding
private and confidential information and any attempt to break the lock of such
systems has been banned.
• According to paragraph 7-20, any effort to hear and examine data packets which
are transferred through the network that belongs to others has been banned.
• In accordance with the provisions of the same paragraph, the punishment for
offenders is to note them for the first time, revoke the provisional license for one
week for the second time, revoke the provisional license for six months if done for
the third time and the fourth time will lead to revoke of license permanently.
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5. Conclusion
Currently, some conventions have been offered by governments on the use of information
and private lives of individuals and the like, but aspects of private lives and security of
e-government are mostly a matter of concern. Another problem of IT is that for people to
maintain their privacy, they are forced not to do many things that they previously did.
According to Human Rights, this causes restriction in civil liberties and autonomy of people
and spoils their independence, which is not accepted at all. Considering the protection of
individuals’ privacy, the protection of the secrecy of telecommunications in international
conventions must be referred to. In this regard, many international laws have been legislated
to respect the privacy of individuals and prevent natural and legal persons from violating
this privacy, and governments are also subjected to obey them. Such rules also exist in Iran
and some other countries, but in some countries such as England, the USA, Singapore and
others, some laws have been legislated for the government’s access to individuals’ privacy
that limit individuals’ freedom in some regards. Finally, in all national and international
laws, no proper executive guarantee has been considered for governments; as governments
have some authority, power and control over people, legislating some international and
uniform principles that predict government’s responsibility and enjoy strong enforcement
seems necessary.
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Further reading
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Corresponding author
Ameneh Malmir can be contacted at: amenehmalmir@yahoo.com
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