Untrodden Paths Towards the Right to Privacy in the Digital Era under African Human Rights Law

(2022) 12 International Data Privacy Law 1, Oxford University Press

Monash University Faculty of Law Legal Studies Research Paper Forthcoming

41 Pages Posted: 24 Feb 2022

Date Written: December 25, 2021

Abstract

This article seeks to illuminate the right to privacy in the digital age under African human rights law. Recent debates have asked whether, and to what extent, African human rights law, and in particular African Charter on Human and Peoples’ Rights (African Charter) protect the right to privacy on the internet. On the one hand, there is a view that the African Charter does not expressly protects the right to privacy, which gives rise to the debate around a lex imperfecta, which in turn, portrays an absence of normative protection on the right to privacy. On the other hand, there is an argument that it is possible to read a right to privacy into the African Charter notwithstanding this lack of an express provision and this offers pragmatic alternatives on the existence of the right to privacy under African human rights law. This article disentangles two untrodden paths towards realising the right to privacy on the internet in Africa: applying international law through the Charter’s flexibility clause and through developments under African human rights law as a result of subsequent agreements and practice. The first way allows the African Commission (Court) on Human and Peoples’ Rights to draw inspiration from international law pertaining to the right to privacy under article 60 of the African Charter. The second way is via subsequent agreements, treaties and protocols that have developed African human rights law since the Charter came into force. As a result of either or both of these pathways, this article argues that the right to privacy in the digital age is protected as part of the corpus of the African human rights law.

Keywords: African Charter on Human and Peoples’ Rights, Digital age, Flexibility clause, Implied right, Privacy, Subsequent agreements

Suggested Citation

Ayalew, Yohannes Eneyew, Untrodden Paths Towards the Right to Privacy in the Digital Era under African Human Rights Law (December 25, 2021). (2022) 12 International Data Privacy Law 1, Oxford University Press , Monash University Faculty of Law Legal Studies Research Paper Forthcoming, Available at SSRN: https://ssrn.com/abstract=3993942 or http://dx.doi.org/10.2139/ssrn.3993942

Yohannes Eneyew Ayalew (Contact Author)

Monash University, Faculty of Law ( email )

Melbourne, 3168
Australia

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