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COVID 19- South Africa Appoints Former Constitutional Court Judge To Safeguard Individual's Privacy [Read Order]

Mehal Jain
6 April 2020 1:53 PM GMT
COVID 19- South Africa Appoints Former Constitutional Court Judge To Safeguard Individual
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In the wake of the onslaught on the right to privacy in the world-wide fight against Coronavirus, the South African government has appointed former Constitutional Court judge, Justice Catherine (Kate) O'Regan, as the COVID-19 Designate Judge to safeguard individuals' privacy and personal information in these critical times. 

The Ministry of Justice and Correctional Services, in its media statement issued on Friday, noted that the State regulations in terms of section 27(2) of their Disaster Management Act, 2002 make provision for contact tracing and for a national database to enable the tracing of persons who are known or reasonably suspected to have come into contact with any person known or reasonably suspected to have contracted COVID-19.
Further, The Regulations authorise the Director-General of Health to direct an electronic communications service provider to supply information regarding the location or movements of any person known, or reasonably suspected, to have contracted COVID-19 or any person known, or reasonably suspected, to have come into contact with such a person. The requested information would be for inclusion in the COVID-19 Tracing Database.
While requiring that the Director-General of Health must file a weekly report with the COVID-19 Designated Judge setting out the names and details of all persons whose location or movements were so obtained, the government stated that the said judge "may also make such recommendations to Cabinet members responsible for Cooperative Governance and Traditional Affairs, Health and Justice and Correctional Services as she deems fit, regarding the amendment or enforcement of this regulation in order to safeguard the right to privacy whilst ensuring the ability of the Department of Health to engage in urgent and effective contact tracing to address, prevent and combat the spread of COVID-19"
"Whilst Government does all it can to implement measures to fight the spread of COVID19, the Designated Judge has an important role to play to safeguard the privacy and personal information of persons during this process", acknowledged the government of the Republic of South Africa.
In India too, the complete disregard of the right to privacy in implementing the 14-day quarantine has been making news, with the Karnataka and Rajasthan state government having publicised the residential addresses of the concerned persons, without a care for the large-scale stigma and the social prejudice that follows. In Delhi and Chandigarh, there are posters (with the stern warning 'COVID-19: Do not visit') affixed outside homes of COVID suspects which carry the names of those placed in isolation. And this inspite of India's long-drawn tryst with untouchability, and even as discrimination continues to be meted out to doctors devoted to combatting the pandemic, Air India crew members engaged in rescuing fellow Indians from foreign locales and even simple north-easterners, who are facing a new form of racist backlash for the "Chinese virus".

As constitutional scholar and lawyer Gautam Bhatia wrote in his blog, "There have been reports, however, of quarantine-jumping in many places, and state governments have taken to innovative methods to enforce the quarantine. One method involves an ink-stamp on the quarantined individual's body, which can be erased after the expiration of the fourteen-day period. The Karnataka government, however, has gone further: it has made publicly available the house numbers, PIN Codes, and immediate travel history of those who have been quarantined (whether they have tested positive or not).

While the ink-stamp – as long as it is non-stigmatic and temporary – might just about meet the test of proportionality in this case, it seems obvious to me that the publication of personal and private details does not; what this amounts to, in essence, is the government shifting its burden of enforcement (of the quarantine) to the individual, whether or not she is at fault. In other words, the government cannot cite its inability to enforce the quarantine as a justification for infringing privacy rights; this, in my view, violates the proportionality standard (in particular, the necessity prong), as there clearly exist other, less restrictive ways of enforcing the quarantine"

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