Privacy and confidentiality

Human rights standards

Treaty Provisions

UN Treaties are available in all or some of the official UN languages: Arabic, Chinese, English, French, Russian and Spanish.

Many human rights treaties protect the right to privacy, including the International Covenant on Civil and Political Rights, Convention on the Rights of the Child, Convention on the Rights of Persons with Disabilities.

International Covenant on Civil and Political Rights
Article 17: 'No one shall be subjected to arbitrary or unlawful interference with his privacy…'
Convention on the Rights of the Child
Article 16 1. No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, or correspondence, nor to unlawful attacks on his or her honour and reputation. 2. The child has the right to the protection of the law against such interference or attacks.
Convention on the Rights of Persons with Disabilities
Article 22 -Respect for Privacy:
  1. No person with disabilities, regardless of place of residence or living arrangements, shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence or other types of communication or to unlawful attacks on his or her honour and reputation. Persons with disabilities have the right to the protection of the law against such interference or attacks.
  2. States Parties shall protect the privacy of personal, health and rehabilitation information of persons with disabilities on an equal basis with others. Article 31-Statistics and data collection: States Parties undertake to collect appropriate information, including statistical and research data, to enable them to formulate and implement policies to give effect to the present Convention. The process of collecting and maintaining this information shall:
    1. Comply with legally established safeguards, including legislation on data protection, to ensure confidentiality and respect for the privacy of persons with disabilities;
    2. Comply with internationally accepted norms to protect human rights and fundamental freedoms and ethical principles in the collection and use of statistics.

UN Treaty Monitoring Bodies General Recommendations/Comments are available in some or all of the official UN languages: Arabic, Chinese, English, French, Spanish, Russian.

Committee on Economic, Social and Cultural Rights, General Comment 14 on the Right to the Highest Attainable Standard of Health (2000)
(c) Acceptability. All health facilities, goods and services must be respectful of medical ethics and culturally appropriate, i.e. respectful of the culture of individuals, minorities, peoples and communities, sensitive to gender and life-cycle requirements, as well as being designed to respect confidentiality and improve the health status of those concerned. Information accessibility: accessibility includes the right to seek, receive and impart information and ideas concerning health issues. However, accessibility of information should not impair the right to have personal health data treated with confidentiality.
They also recommended that States should ensure timely and affordable access to good-quality health services, which should be delivered in a way that ensures that a woman gives her fully informed consent, respects her dignity, guarantees her confidentiality, and is sensitive to her needs and perspectives (8).
Human Rights Committee (CCPR) General Comment 16: The right to respect of privacy, family, home and correspondence, and protection of honour and reputation (Art. 17) (1988)
Paragraph 7: "As all persons live in society, the protection of privacy is necessarily relative. However, the competent public authorities should only be able to call for such information relating to an individual's private life the knowledge of which is essential in the interests of society as understood under the Covenant. Accordingly, the Committee recommends that States should indicate in their reports the laws and regulations that govern authorized interferences with private life."
Paragraph 11: "Article 17 affords protection to personal honour and reputation and States are under an obligation to provide adequate legislation to that end. Provision must also be made for everyone effectively to be able to protect himself against any unlawful attacks that do occur and to have an effective remedy against those responsible. States parties should indicate in their reports to what extent the honour or reputation of individuals is protected by law and how this protection is achieved according to their legal system."
Human Rights Committee (ICCPR) General Comment 28: The equality of rights between men and women (2000).
Paragraph 11: "To assess compliance with article 7 [freedom from torture, and cruel, inhuman and degrading treatment)] of the Covenant, as well as with article 24, which mandates special protection for children, the Committee needs to be provided information on national laws and practice with regard to domestic and other types of violence against women, including rape. It also needs to know whether the State party gives access to safe abortion to women who have become pregnant as a result of rape. The States parties should also provide the Committee with information on measures to prevent forced abortion or forced sterilization. In States parties where the practice of genital mutilation exists information on its extent and on measures to eliminate it should be provided. The information provided by States parties on all these issues should include measures of protection, including legal remedies, for women whose rights under article 7 have been violated."
Paragraph 20: "States parties must provide information to enable the Committee to assess the effect of any laws and practices that may interfere with women's right to enjoy privacy and other rights protected by article 17 [right to privacy] on the basis of equality with men. An example of such interference arises where the sexual life of a woman is taken into consideration in deciding the extent of her legal rights and protections, including protection against rape. Another area where States may fail to respect women's privacy relates to their reproductive functions, for example, where there is a requirement for the husband's authorization to make a decision in regard to sterilization; where general requirements are imposed for the sterilization of women, such as having a certain number of children or being of a certain age, or where States impose a legal duty upon doctors and other health personnel to report cases of women who have undergone abortion. In these instances, other rights in the Covenant, such as those of articles 6 and 7, might also be at stake. Women's privacy may also be interfered with by private actors, such as employers who request a pregnancy test before hiring a woman. States parties should report on any laws and public or private actions that interfere with the equal enjoyment by women of the rights under article 17, and on the measures taken to eliminate such interference and to afford women protection from any such interference."
Paragraph 20: "States parties must provide information to enable the Committee to assess the effect of any laws and practices that may interfere with women's right to enjoy privacy and other rights protected by article 17 on the basis of equality with men. An example of such interference arises where the sexual life of a woman is taken into consideration in deciding the extent of her legal rights and protections, including protection against rape. Another area where States may fail to respect women's privacy relates to their reproductive functions, for example, where there is a requirement for the husband's authorization to make a decision in regard to sterilization; where general requirements are imposed for the sterilization of women, such as having a certain number of children or being of a certain age, or where States impose a legal duty upon doctors and other health personnel to report cases of women who have undergone abortion. In these instances, other rights in the Covenant, such as those of articles 6 and 7, might also be at stake. Women's privacy may also be interfered with by private actors, such as employers who request a pregnancy test before hiring a woman. States parties should report on any laws and public or private actions that interfere with the equal enjoyment by women of the rights under article 17, and on the measures taken to eliminate such interference and to afford women protection from any such interference."
Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), General Recommendation 24 on Women's Health (1999)
Paragraph 12. States parties should report on their understanding of how policies and measures on health care address the health rights of women from the perspective of women's needs and interests and how it addresses distinctive features and factors that differ for women in comparison to men, such as: (d) While lack of respect for the confidentiality of patients will affect both men and women, it may deter women from seeking advice and treatment and thereby adversely affect their health and well-being. Women will be less willing, for that reason, to seek medical care for diseases of the genital tract, for contraception or for incomplete abortion and in cases where they have suffered sexual or physical violence.
22. States parties should also report on measures taken to ensure access to quality health care services, for example, by making them acceptable to women. Acceptable services are those which are delivered in a way that ensures that a woman gives her fully informed consent, respects her dignity, guarantees her confidentiality and is sensitive to her needs and perspectives.'
Recommends requiring '…all health services to be consistent with the human rights of women, including the rights to autonomy, privacy, confidentiality, informed consent and choice'.

Treaty Monitoring Body case law

KL v Peru (Human Rights Committee, 2005)
The UN Human Rights Committee in the case of K.L. v Peru articulated the important intersections between fetal impairment and women's mental and physical health when determining whether K.L., 17 years old, was entitled to a therapeutic abortion under the law. The Peruvian abortion law only permits abortion in cases when a woman's health or life is in danger, without specifying if health includes mental health. K.L. was denied the abortion by physicians, in part, because the law did not have an explicit fetal impairment exception. The Committee, however, applied WHO's holistic definition of health in determining that she was entitled to an abortion under the law. In doing so, the Committee recognized the 'preventable and foreseeable' mental distress to which she suffered when she was forced to carry the pregnancy to term. The Committee found that the denial of a lawful abortion violated her right to privacy and the right to be free from cruel, inhumane or degrading treatment, as well as the right to special protection as a minor.
LMR v Argentina (Human Rights Committee, 2011)
The abortion law before the Human Rights Committee in the case of LMR v Argentina, allowed for abortion on grounds of rape of a disabled women, but due to stigmatization of the procedure, lack of knowledge of the law, and the chilling effect of criminal sanctions, medical providers refused to perform the procedure, forcing a mentally disabled young woman to seek redress in long court proceedings and eventually an illegal abortion. The Human Rights Committee found violations of numerous articles of the International Covenant on Civil and Political Rights, including the right to private life (Article 17).
The State party not only interfered in a decision concerning L.M.R.'s legally protected reproductive rights but also interfered arbitrarily in her private life, taking a decision concerning her life and reproductive health on her behalf. The Committee also noted Argentina's acknowledgement that the State's unlawful interference, through the judiciary, in an issue that should have been resolved between the patient and her physician could be considered a violation of her right to privacy.

European Convention on Human Rights

Under European Convention case law, the right to respect for private life (Article 8 of the European Convention on Human Rights) extends to the physical and moral integrity of a person and legislation regulating the termination of pregnancy touches upon the sphere of private life falling under the scope of Article 8. Under current Convention case-law, Member States have a positive obligation to ensure measures are in place to guarantee women's access to abortion where legal. The European Court of Human Rights has applied its long-standing standard that the 'Convention is intended to guarantee not rights that are theoretical or illusory, but rights that are practical and effective' to the context of implementation of abortion regulation. It has addressed this in numerous cases and contexts, noting that the right to private life requires states to: legislate on abortion when the national constitution guarantees right to life of pregnant woman; to ensure procedural safeguards to access abortion; to be provided information on the health status of their pregnancies, including prenatal tests; to ensure information on patients undergoing an abortion is kept confidential; to regulate the practice of conscientious objection; and that a pregnant woman's right to private life supersedes that of the 'father's' when it comes to decisions to undergo an abortion.

Convention bodies have carefully avoided stating the extent to which the European Convention on Human Rights requires states to ensure that abortion be legally available under domestic law. (For a summary of European Convention case law issued by the European Court of Human Rights, with citations) on reproductive rights, including abortion, see Fact Sheet-Reproductive Rights, September 2013).