IntroductionTHE task of regulating and supervising the protection of freedom of expression is complex, mainly because of the nature and scope of this freedom. On one hand, freedom of expression has pervasive influence on the protection of other rights - because, once people could freely discuss all national issues, it would be difficult for any public or private individual or agency to infringe on other guaranteed rights. On the other hand, the exercise of freedom of expression normally collides with other rights and freedom protected by the constitution, such as privacy and fair trial; and with public interests, such as maintaining the confidence and integrity of the court, protecting national security, public health or moral, and public safety.Broadly speaking, freedom of expression guarantees the freedom to express oneself through speech, religion, assembly, writing, arts, and the use of the press without unjustified interference, while privacy protects the privacy of citizens, their homes, correspondence, telephone conversation and telegraphic communication. While expressing oneself, one could unjustifiably be invading the privacy of another, thus on the surface, the two rights are in conflict, thereby placing slippery and onerous tasks on the court in the balancing act.What is privacy'Privacy is a human right that attempts to draw a line between the individual and the society at large. It seeks to allow the individual some space where he can alone, be himself, think his own thought, and do what he wants to do without interference from other persons. The right to privacy has also been defined as 'the right to live one's life in seclusion and to be left alone'.The right of privacy has been explained, as 'the right to live one's life without being subjected to unwarranted and undesired publicity, except when one, whether willingly or not, become an actor in an occurrence of public and general interest. When this takes place, he emerges from his seclusion, and it is not an invasion of his right to privacy to publish his photograph with an account of such occurrence'.The right of privacy is 'founded upon the claim that a man has the right to pass through this world, if he wills, without having his pictures published, his business enterprise discussed, his successful experiment written up for the benefit of others, or his eccentricities commented upon either in handbills, circulars, catalogues, periodicals or newspaper'.Cases involving right to privacy are few in Nigeria probably linked to the fact that this right was enshrined in the Nigerian Constitution for the first time in the 1979. Section 37 of the 1999 Constitution of Nigeria provides: the privacy of citizens, their homes, correspondence, telephone conversation and telegraphic communication is hereby guaranteed and protected. However, the marginal note to the section indicates Right to private life and family. Dr Osita Ogbu in Human Rights, Law and Practice in Nigeria: An Introduction argued that the omission of right to family life in the section 37 appears to be inadvertent because similar provisions on right to privacy in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights include the right to family.In Medical and Dental Practitioners' Disciplinary Tribunal v Dr. John Emewulu Nicholas Okonkwo (2001) 7 NWLR Pt 711,p208), the Supreme Court of Nigeria held, among other things, that the constitutional right of privacy includes the right of a competent, mature adult to refuse treatment that may prolong his life even though that refusal may seem unwise, foolish or ridiculous to others. The court explained that if a competent adult patient exercising his right to reject life-saving treatment on religious grounds, thereby chooses a path that may ultimately lead to his death, in the absence of judicial intervention overriding the patient's decisions, there is no other meaningful option for the medical practitioner, than to perhaps give the patient comfort.The court further held that a patient's constitutional right to object to medical treatment, particularly, as in this case, to blood transfusion on religious grounds is founded on fundamental rights, such as right to privacy, rights to freedom of thought, conscience and religion. It stated that the sum total of the right of privacy and of freedom of thought, conscience or religion, which an individual has, is that an individual should be left alone to choose a course for his life, unless a clear and compelling overriding state interest justifies the contrary.Viewed from a deeper perspective, right to privacy is an integral part of the 'right to liberty, to personal thought and to the pursuit of happiness which takes into cognizance of the fact that the individual as an entity does not exist solely for the state or society but has inalienable right, which cannot be taken away without justification'.In YF v Turkey (Application No: 21439/93, judgment of February 24, 1998), the European Court of Human Rights held, inter alia, that a person's body concerns the most intimate aspect of one's life and, as such, compulsory medical examination, even if it is of minor importance, constitutes an interference with the right to private life protected by Article 8 of the European Convention, thus forced gynecological examination of the an individual was, interference by a public authority. Such interference will violate Article 8 unless it is in accordance with the law, pursues a legitimate objective and can be considered necessary in a democratic society.Also in Botta v Italy (Application No: 24209/94), the European Court held that private life includes a person's physical and psychological integrity and that Article 8 of the European Convention on Human Rights (Right to Privacy) was intended to ensure the development, without outside interference, of the personality of each individual, in his relations with other human beings.Invasion of privacy may occur in the following instances: 'Using someone's name or picture for commercial gain without his consent; intruding in someone's solitude especially within his/her home - by taping voices and taking pictures and also by publishing embarrassing personal facts. But where an individual appears, voluntarily or involuntarily in a news situation or becomes a subject of public attention, he may not claim a right of privacy'.
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