Thought of the Week | The right to privacy and RICA: Big Brother’s (unrestrained) watch has ended

In February 2021 the Constitutional Court handed down a judgement that made notorious whistle-blower Edward Snowden tweet: “Wow”.

Privacy and the protection thereof has become an increasingly hot topic of late, with the spotlight shining brightly on the practices of social media giants, governments and the like. As we increasingly rely on technology for our daily interactions, the potential points of entry into our most private sphere is ever-increasing, and so too is the scope of information that can be collected. We are now at a point where we no longer simply wonder, “Is anyone watching?” The pertinent questions now are “who, why and what are the rules?”

Our Constitution enshrines the right to privacy as a fundamental human right, closely linked to the right to dignity. Section 14(d) of the Constitution specifically provides that everyone has the right “not to have the privacy of their communications infringed”.

The case of AmaBhungane Centre for Investigative Journalism NPC v Minister of Justice and Correctional Services; Minister of Police v AmaBhungane Centre for Investigative Journalism NPC 2021 (3) SA 246 (CC) had at its core the discord between the right to privacy, and the right of the state to engage in surveillance of individuals.

Specifically considering interception of private communications in the context of the Regulation of Interception of Communications and Provision of Communication-Related Information Act 70 of 2002 (“RICA”).

Spoiler alert: the right to privacy won the day, and it was held that RICA is unconstitutional to the extent that it fails to adequately protect said right. Whilst recognising that RICA serves a vital government function, Justice Madlanga took no prisoners in his examination and eventual negative conclusion as to whether the Act does enough to reduce the risk of unnecessary intrusions and thus protect the privacy of citizens.

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