Privacy Rights

Abstract This chapter examines how jurisdictions in East and Southeast Asia protect various aspects of privacy through their constitutional regimes. It first surveys East Asian jurisdictions, starting with the jurisdictions that are most protective of privacy rights, then turns to Southeast Asia, again starting with the jurisdictions that are relatively more protective of privacy. Finally, this chapter identifies patterns and highlights from viewing constitutional privacy rights in East and Southeast Asian jurisdictions together as a region. Of the jurisdictions considered in this chapter, only Brunei and Laos do not provide any apparent constitutional protection of privacy, but constitutional protections are not justiciable in at least three others (China, North Korea, and Vietnam). Protections are of uncertain existence in Malaysia and Singapore, and untested in the courts in Timor Leste, Thailand, Cambodia, and Macau SAR. That leaves six East and Southeast Asian jurisdictions where constitutional privacy protections have been enforced by the courts (South Korea, Taiwan, Japan, Hong Kong SAR, Indonesia, and the Philippines). Asian courts with the most developed privacy jurisprudence frequently use similar language to protect privacy. Courts have found privacy to be an implied right based on protections of dignity and autonomy interests, such as personality development and informational self-determination. In defining valid restrictions on the constitutional right of privacy, the courts have adopted strikingly similar legal tests. Despite there being a wealth of privacy jurisprudence from some Asian courts, there are no instances of these courts citing each other’s decisions as valuable sources of arguments about privacy.