The Exercise of Right to Privacy in Marriages: A Concise Examination

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By Olumide Babalola

Owing to the highly controversial and debatable nature of this issue, I expectedly struggled to carve out an apt title. However, I believe that the theme of this article is not lost on the readers notwithstanding the caption.

On a lighter note, I had to seek and obtain permission from my wife (who is co-incidentally a more meticulous lawyer) before writing this article, lest she thinks this is my position in our home. In other words, I have since waived my (constitutional) right to privacy at home.

As the concept of privacy continues to emerge, its vulnerability also keeps becoming more visible in the most sacred places. Technological breakthrough appears a blessing on one hand and a bane to the continued enjoyment of unadulterated privacy on the other hand.  Invasion of privacy was traditionally viewed as an external attack until the advent of social media and all manner of intrusive digital privacy-invading computer software which now enable close relatives to pry seamlessly like never.

In this article, I examine a few (legal) issues surrounding expectation of privacy between couples (married under the Marriage Act especially) and the ramifications of the exercise of the right in intimate relationships. I conclude on our existing state of the law while hoping this forms the basis for future legal and scholarly engagement.

Do spouses have reasonable expectation of privacy under the Nigerian Constitution?

Within the Nigerian context, every citizen is guaranteed right to privacy per section 37 of the constitution. The Court of Appeal has expansively defined the phrase ‘privacy of citizen’ thus:

“The meaning of the term “privacy of Citizens” is not directly obvious on its face. It is obviously very wide as it does not define the specific aspects of the privacy of citizen it protects. A citizen is ordinarily a human being constituting of his body, his life, his person, thought, conscience, belief, decisions (including his plans and choices), desires, his health, his relationships, character, possessions, family etc.”

From the foregoing judicial intervention, it is beyond doubt that, once a spouse is a Nigerian citizen (as expressly used in section 37), he or she enjoys right to privacy under the constitution and of course, has every expectation of privacy within or outside the home.

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Does a citizen waive his/her right to privacy by committing to marriage?

Neither the Marriage Act nor the Matrimonial Causes Act defines the word ‘marriage.’ However, at page 244, Babalola’s Law Dictionary of judicially defined words and phrases (2nd edition, Noetico Repertum, Lagos, 2019), the word marriage is defined as:

“(1) The legal union of a couple as spouses’ (Amobi v Nzegwu (2013) LPELR- 21863 (SC); (2) The voluntary union for life of one man and woman to the exclusion of others”.

From the definitions of marriage above, one would be tempted to immediately ask a number of questions:  if it is a union, then can a party to such an intimate union unilaterally create ‘private domain’ against the other spouse? and can there be invasion of privacy between spouses in an intimate union?

In due consideration of the growing technological intrusion into what used to be normal pattern of living, my answer to the posers would be – a conditional Yes, i.e. a spouse ordinarily ought not create privacy domain against his/her partner but this is not without its exceptions. These exceptions are accentuated by the risks and implications of such ‘spousal privacy invasions’ especially when things go south. Think of intimate surveillance, revenge porn, sex blackmail etc. (See Karen EC. Levy. ‘Intimate Surveillance’ (2019)51(3) Idaho Law Review, 687).

I am not however unmindful of the moral and quasi-legal school of thought that marriage ought to be built on trust, hence, parties must be open to another. I also imagine the consideration that, it is a contract between two consenting adults to live together till death or dissolution of such union, hence it is arguable that the draftsmen relegated privacy to the background by making non- consummation of marriage a ground for dissolution of marriage.

This school also explains away that the statutory expectation of ‘oneness’ of spouses is backed by the Evidence Act 2011 which makes it legally impossible to compel a spouse to disclose communications in marriages in certain cases. (See section 187). It is also taken for granted that, there are many typical invasion of privacy acts that cannot give rise to an action in invasion of privacy between married spouses. On this line of thought, Karen Levy and Bruce Schneier succinctly argue that:

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“Victims of intimate privacy threats typically lack legal recourse. Judges and legislators are generally loath to intervene too strongly in what is often considered the sacred space of the intimate sphere tending to protect the privacy of families vis a vis the state rather than privacy within the family”. (see Karen Levy and Bruce Schneier Privacy threats in intimate relationships’ (2020) 6(1) Journal of Cybersecurity, 1–13).

Notwithstanding these convincing sentiments, even though not many people go into marriages with the expectation that their entire private lives would still be intact, given the constitutional provision that guarantees right to privacy in favour of every citizen and our case law position that fundamental rights cannot be waived. (See Ogba v The State (1992) LPELR – 22273(SC), it is my modest view that a marriage does not take away reasonable expectations of privacy with the right to exercise same whether or not reasonable bounds are crossed.

A spouse’s right to enforce his/her fundamental right to privacy remains untainted within or outside the bounds of marriage and neither the Marriage Act nor the Matrimonial Causes Act contemplates such.

Does data protection apply to marriages?

Data protection is an offshoot of privacy. In Europe, data protection is a stand-alone fundamental right but within the European Union it is regulated by the General Data Protection Regulation (GDPR). Article 2 excludes the application of the regulation from processing of personal data in purely personal and household activity.

In Nigeria, it is subsumed under right to privacy guaranteed by section 37 of the Constitution (See the recent decision in DRLI v NIMC (2021) LPELR- 55623(CA). Taking a cue from the GDPR, paragraph 2.1 (v) NDPR Implementation Framework also exempts the application of NDPR from ‘personal or household activities with no connection to a professional or commercial activity’.

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Now, what are personal or household activities? Nigeria is bereft of authorities in this regard, hence my recourse to foreign decisions. In Tietosuojavaltuutettu v Jehovan todistajat — uskonnollinen yhdyskunta the Court of Justice of European Union defined ‘personal or household activities’ within the context of data protection as processing ‘covering only activities that are carried out in the context of the private and family life of individuals.’ See page 288 of Casebook on data protection by Olumide Babalola (published in 2020 by Noetico Repertum Inc.)

Since the interaction of spouses most times takes place within the context of private and family life, data protection laws are exempted from such processing. This is not however saying there may be instances where processing of data between spouses may transcend the realm of purely personal and household activities, in which cases, data protection legislation will apply.

Conclusion

Conclusively, while every citizen generally enjoys right to privacy under the Nigerian constitution, an agreement to enter into marriage must contemplate some form of ‘privacy-invasions’ within the home. The strict exercise of right to privacy may however be anathemic to the specie of ‘union’ contemplated in marriages. One may have to give way to the other. They usually cannot co-exist in the strict sense in law or morality. However, there must be bounds to the degree of ‘invasion’ or ‘surrender’ or ‘waiver’ of privacy between spouses.

I conclude with the words of Karen Levy that: “The fact that intimate information-sharing is widespread and often accepted should not lead us to be unreflective about very real privacy threats within intimate relationships. Rather, it makes it all the more important to consider how intimate privacy threats occur, when they are unwelcome, and how to reason about them conceptually. The line between watching and watching over is a blurry one. Even in close, loving, and generally functional relationships, privacy invasions can at times be cause for conflict and anxiety.” (Karen Levy and Bruce Schneier Privacy threats in intimate relationships’ (2020) 6(1) Journal of Cybersecurity, 1–13).

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