Justified Infringements of Rights: The Use of Harmful Methods


The International Bill of Rights certainly does not propose an absolute right to privacy. Rather, these declarations of rights are intended to protect persons against arbitrary interference with their privacy. So what does this actually mean? The Shorter Oxford Dictionary (1993) defines arbitrary as unrestrained in the exercise of will or authority; despotic, tyrannical. Thus, an arbitrary infringement of privacy would be an infringement that was based on an unrestrained exercise of authority, and a non-arbitrary infringement of privacy would be an infringement that was justified according to recognisable and objectively defined standards. In fact, many countries have recognised the need to establish clear standards that make it possible to clearly differentiate between justified and unjustified infringements of privacy, laying down in legislation the specific conditions that must be met in order for an infringement of the right to privacy to be legal. The basis of these laws, as with most criminal laws, are ethical principles, so the laws themselves reveal the ethical principles that are considered to be important.

In order the determine when it might be justified to infringe on a particular person s right to privacy, it is necessary to have some understanding of when it is going to be generally justifiable to infringe on a right. The area of police ethics has been an important source of discussion in this area, since the infringement of rights is an everyday occurrence in police-work. The basic principle in that area is that a police officer will only be justified in infringing on a person s moral rights if the following rules are met:

  1. The police officer is aiming to achieve a good end.

  2. The infringement of rights is necessary (i.e., there are no other means that could be used to achieve this end).

  3. The good that is being aimed at by infringing this right outweighs the evil that will follow from infringing the right (i.e., the infringement of rights is proportional to the end that is being aimed at).

The usual situation where a police officer will be required to infringe upon a particular person s rights, is where such an infringement is necessary in order to protect the rights of another person. In order for condition (3) to be met, the rights that the police officer is aiming to protect would have to be at least as fundamental as the rights that the police officer is going to infringe.

A practical example that illustrates this situation is when a police officer is forced to resort to the use of deadly force. If a police officer is going to infringe upon a person s right to life (or threaten to infringe upon their right to life) through the use of deadly force, then this will only be considered to be proportional to the situation if the officer is using deadly force to protect the right to life of another person. One person s right to life is threatened by the police officer in order to protect the equally fundamental right of someone else. It can clearly be seen that the police officer would not be justified in using deadly force in order to prevent a theft. The right to own property is not as fundamental as the right to life; thus, it would not be proportional for a police officer to threaten to infringe upon the right to life in order to protect another person s right to own property.

The three rules that I mentioned earlier are really the only justification for any infringement of rights. In order for it to be justified for person A to infringe upon any of the moral rights of person B, the three conditions must be met. Person A must be aiming at a good end, there must be no other way of achieving that end that does not infringe upon rights, and the infringement of the rights of person B must be proportional to the end that is being aimed at (i.e., the right that is being protected by infringing upon the rights of person B must be at least as fundamental as the right of person B that is being infringed upon). In fact, in situations where these three conditions are actually met, it will often be the case that person B is attempting to infringe upon the rights of another person, and that this is the reason why it is justified to infringe upon the rights of person B. There is one important general consequence to the need for justification for the infringement of rights. Any time that an important moral right is being infringed upon, if that infringement of rights is to be considered justified, then the circumstances of that individual case will need to be examined. One cannot give a blanket approval for the infringement of rights; each infringement will have to be considered on a case-by-case basis to determine if that particular infringement of rights is justified.

In order for it to be justified to infringe upon any person s right to privacy, the three basic conditions must be met: good ends aimed at, privacy infringement necessary, and privacy infringement proportional to the ends aimed at. In general, it will only be justified to infringe upon a person s right to privacy where this is necessary in order to preserve the more fundamental rights of others, rights such as life, liberty, and security of person.

The need to justify infringement of the right to privacy has long been recognised in law. For example, if a police officer wants to infringe upon a particular person s right to privacy by searching their house or by tapping their telephone, and if the officer wishes to do this legally, then it is necessary for the police officer to obtain a warrant. In order to get a warrant that will allow this legal invasion of privacy, the officer must provide evidence that this infringement of privacy is justified by showing that the infringement is necessary and that there are reasonable grounds at law to allow the infringement of rights. In effect, the officer is being asked to prove to a third party (usually a judge) that this particular infringement of rights meets the three general rules for justified infringement of rights.

In terms of the International Bill of Rights, if a particular infringement of privacy meets the three general conditions for the infringement of rights, then that infringement of the right to privacy is non-arbitrary, and infringing upon someone s privacy in this way would not breach the right to privacy clauses of the UDHR or the CCPR.

Having discussed the arbitrary and non-arbitrary infringement of the right to privacy, it is now time to return to the final task of this paper ” to see what the International Bill of Rights might say about the issue of privacy and how this might apply to issues of privacy arising from the Internet.




Electronic Monitoring in the Workplace. Controversies and Solutions
Electronic Monitoring in the Workplace: Controversies and Solutions
ISBN: 1591404568
EAN: 2147483647
Year: 2005
Pages: 161

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