The right to privacy is a fundamental right under Article 7(19) of our Constitution, which states: “A person shall not be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence nor to unlawful attacks on the person’s honour and reputation”. Article 7(9) gives the right to privacy not only to the person himself or herself but also to the family from arbitrary or unlawful interference. The protection of privacy has become ever more important. With the ever-increasing number of Bhutanese on social media and as the so-called investigative journalism becomes bolder, the vulnerabilities of leakage of personal information to the public is high. In name of investigative journalism or breaking news or to seek popularity on social media by some netizens or to fulfil vested interests, many innocent citizens may become a victim.
Alan Westin defined privacy 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”. Therefore, the right to privacy is not just protection from divulging personal information but also the right to protect how to divulge and to what extent. This also indicates that, though a person may agree to give his or her personal information, a person who receives the information does not have the right to use the information as one wishes. A scholar said that in a democracy, it is our responsibility to “develop privacy standards that are capable of structuring the right kind of information use”.
This week, the right to freedom of the press and the patient’s right to privacy confronted each other. During one of the Press Conference, some of the journalists questioned the Minister of Health why the information about the first Bhutanese Covid-19 case was kept secret including travel history. The Health Minister responded that the right to privacy of the patient is the priority and there were no benefits out of additional information. The Minister also rightly pointed out that since Bhutanese society is very small and revealing information would make the patient’s identity easy to know. The right to health privacy is among the most important privacy issues because, “certain diseases have long been associated with great stigma (e.g., leprosy, HIV/AIDS); other diseases are correlated in other people’s minds with certain lifestyles and behaviours”. Revealing health information may also pose a threat to the possibilities of getting jobs, reputation and respect within the communities. For example, many might distance themselves from a patient who is diagnosed with Covid-19 in the present case even after she recovers from the disease due to fear of getting infected.
However, should the media or even any person may reveal details of the patient there is no statutory protection of the right of the patient in Bhutan. Further, Bhutan does not have any privacy torts which “provide remedies for intrusions into areas where one is receiving health care or public disclosures of private medical information”. Therefore, it is important to enact a privacy law that will regulate the “confidentiality of the relationship between patients and their physicians or other health caregivers” in the country. The media and individuals must remember that, as per Article 7(2) of our constitution, among others, a person shall not infringe on the rights and freedoms of others which includes the right to privacy.
Sonam Tshering Lawyer, Thimphu
Disclaimer: The views expressed in this article are author’s own.