INFO 4305

CYBER LAW &

ISLAMIC ETHICS
Topic 4
Rights and Privacy
DEFINITION & SCOPE OF THE
RIGHT TO PRIVACY
◼ The electronic community is faced with a
dilemma : the tug of war between the
desire for a free flow information and the
need of privacy.
◼ Privacy has been defined as ‘the claim of
individuals, groups or institutions to
determine for themselves when, how and
to what extent information about them is
communicated to others. The simple
definition is ‘the right to be let alone.’
◼ Generally it can be defined as the quality or
condition of being secluded from the presence
or view of others; the state of being concealed;
secrecy. However, it is undesirable to adopt this
definition because not every secret information
is subjected to privacy protection and not
everything that is disclosed loses its privacy
characteristic.
◼ It suffices to say that the term 'privacy' refers to
the privilege owned by an individual from any
interference by other(s) with any of his/her
private activities so long as these activities are
not illegal and do not harm other(s).
◼ It is claimed that privacy does not need specific
legal recognition because when there is illegal
intrusion to the right to privacy, the plaintiff can
claim for remedy under the existing legal
doctrine such as defamation; or breach of
intellectual property rights; or breach of
confidential information; or even breach of
contract or trust.
◼ However, the existing legal doctrine is not
sufficient to protect one’s privacy
THE SOURCES OF RIGHT OF
PRIVACY
◼ The right to privacy is recognized as a
fundamental human rights as declared in
Article 12 of the Universal Declaration of
Human Rights and Article 17 of the
International Covenant on Civil and
Political Rights. Some countries recognize
this right as constitutional right of
individuals.
EXAMPLES OF PRIVACY CASES
IN DAILY TRANSACTIONS
◼ Computers are able to collect a lot more
information in circumstances where few
records were previously gathered . Consider
the use of debit and credit cards as opposed to
the cash payment. A purchaser using a credit
card in a retail store will record the amount of
transaction, the time and the date, and the
identity and location of the purchaser. Cash
payments normally leave no such trail.
◼ Many automated teller machines operate in this
way as part of the system of a financial
institution. Being online permits transactions to
be processed immediately, the impact on the
parties to the transaction is instantaneous. This
will allow the operator to determine the exact
location of those concerned. Moreover, the
sharing of a network may allow the parties to it
to gain access to information not previously
available to them.
PROBLEMS ARISE IN LIEU OF
ONLINE PRIVACY
◼ Cookies
◼ Online services can track and record our
activities
◼ Online services can access information in
our computer without our knowledge
ONLINE PRIVACY AND THE LAW
: the US Example
◼ The U.S. has taken a sectoral approach to
privacy by enacting laws that apply to
specific industries and practices.
◼ Among the examples of Act:
 Privacy Act 1974
 Electronic Communications Privacy Act 1986
 Video Privacy Protection Act 1988
 Children’s online Privacy Protection Act 1998.
 many other statutes.
◼ This approach is different from the
European nations, Canada, Australia, New
Zealand and Hong Kong. These countries
have enacted omnibus data protection
laws which cover the full medium of uses
of personal information.
◼ In protecting consumer privacy, the
committee that plays a vital role is the
Federal Trade Commission (FTC).
Electronic Communications Privacy
Act 1986
◼ covers e-mail privacy in a workplace. This Act
prohibits unauthorized interception and
accessing of e-mail, which fines up to $10,000
and up to one year imprisonment. The law
however includes certain exceptions permitting
e-mail service providers to intercept and access
e-mail as part of the activity necessary to
provide the service. The employers also are
being prevented from monitoring the employee’s
e-mail except if the employer’s policy allow this
practice and the employees know about it.
Inbox Privacy Act 1999
◼ To prohibit the transmissions of unsolicited
commercial electronic mail. A person is
prohibited from initiating the transmission
of unsolicited commercial electronic mail
to another person if such person declines
to receive it.
Identity Theft and Assumption
Deterrence Act 1998
◼ The fear of identity theft plagues the
information age. Identity theft can range
from unauthorized use of our credit card to
someone creating “our duplicate” complete
with our birthday and social security
number and leaving us with a pile of
unpaid bills.
Children’s Online Privacy Act 1998
◼ A child is an individual below 13 years old.
◼ the FTC has established new rules for website operators
to make sure that kid’s privacy is protected while they
are online. Under the Act, the websites directed to
children or collect information must post a notice of their
information collection practices that includes; types of
personal information they collect, how the site will use
the information, whether that information will be
forwarded to the third party.
◼ Most importantly, the website operators are required to
get parental consent before collecting, using or
disclosing personal information about a child.
Privacy Protection Act 1980
◼ The government employees cannot raid or
search newspapers, books, broadcast
materials and including electronic items
from the publisher unless it believes that
the criminal offence has been committed
to which the materials related or
immediate seizure is necessary to prevent
death or serious bodily injury
Financial Privacy Act
◼ It restricts government access to the
financial records of any financial
institution’s customer.
◼ Exceptions :
 If the information is relevant to a possible
violation of any statue or regulation
 Also records needed to claim in bankruptcy,
government loan, loan guarantee, etc.
◼ The other countries legislated the laws on
Data Protection to protect the privacy, as
mentioned earlier.
◼ This also includes Malaysia.
SHARI’AH RULINGS ON
RIGHTS (AL-HUQUQ)
◼ Definition of haqq;

◼ “ right, power and claim”.

◼ Shi’I fiqh “ haqq is a power, whether material or spiritual, that
the law has granted to a person over another person, over
property, or over both.”
◼ Musa “ a benefit (maslahah) which the law giver has granted
to the individual, or the community, or both.”
◼ Khafif “ what is a proven by a syariah for the benefit for a
man.”
◼ Dariri. “ an exclusive appropriation of power over something,
or a demand addressed to another person which shariah has
validated in order to realize a certain benefit. “
◼ All of these definitions recognize four essential
requirements of haqq.
 Itis something proven or established by the authority
of shariah.
 The right-bearer may be an individual or God.
 The mukallaf (legally responsible person) to whom
the haqq applies is bound by a duty to respect it.
 For a right to exist, there must be affirmative
permission in the Shariah or, failing that, there must
be no prohibition against it.
THE AUTHORITIES
◼ An-Nuur 24: 27

◼ “ O you who believed! Enter not houses other

than your own, until you have asked permission
and saluted those in them: : that is best for you,
In order that ye may heed (what is seemly).”
◼ An-Nuur 24: 58 & 59
◼ “O you who believe! Let those whom your right hands
possess, and the children among you who have not come of
age, ask your permission before they come to your present on
these three occasions: before Morning prayer; the while you
take off your clothes from the noonday heat; and after the late
night prayer.
◼ But when the children among you come of age, let them ask
for permission, As do those senior to them (in age): Thus
does Allah make Clear His Signs to you: for Allah is full of
knowledge and wisdom.”
◼ Al-Hujuraat 49 : 12
◼ “ …And spy not on each other…”
◼ Al-Ahzab 33: 53
◼ “O you who believe! Enter not the Prophet’s houses, until
leave is given you, For a meal and then not so early as
to wait for its preparation: but when you are invited,
enter; and when you have taken your meal, disperse,
without seeking familiar talk. Such behaviour annoys the
prophet: he is ashamed to dismiss you, but Allah is not
ashamed to tell you the truth….”
◼ Hadith

◼ “ The lowest of the people to Allah on the

day of Judgement will be the man who
consorts with his wife and then publicizes
her secret.”