Attorney General Anil Nandlall, Guyana’s chief lawmaker and defender of the state, has two positions on the right to privacy. Following the release of a recording of the threats he made to Kaieteur News he hastened to claim a right to privacy.
And to support his claim he quoted sections of a law on the interception of communication.
However, when some person or persons recorded a conversation between the then Commissioner of Police Winston Felix, and Attorney at Law, Basil Williams, Nandlall had this to say.
There is no right to privacy known to the laws of Guyana
A recorded conversation believed to be between the Commissioner of Police, Mr. Winston Felix and PNCR Vice Chairman and Parliamentarian Mr. Basil Williams, was aired and published in several sections of the media. Because of its startling and disturbing content, this recorded conversation eventuated much public debate, concern and even outrage.
The Government’s response was in the form of a statement, the content of which is simply baffling to the rational mind. One can only hope that a response of greater cognition shall be soon forthcoming.
The PNCR response was more expansive and it came in the form of a press conference. Like the Government, the PNCR refused to deal with the content of the conversation, but rather concentrated their energies and emphasis on its source and manner of acquisition. They contended, inter alia, that the taping of the conversation and its broadcast were ‘illegal’, and that it constitutes an invasion of privacy, arguing with credulity that the conversation was a private conversation; as if that makes a difference! The ‘illegality’ of which the PNCR spoke was neither explained nor elaborated. One would have expected that the rule or principle of law that was allegedly breached or the offence which was allegedly committed would have been identified. Unfortunately this was not done. It was argued that the taping of the conversation and its broadcast constitute an invasion of privacy.
I respectfully submit that there is no right to privacy known to the laws of Guyana or even the common law of England from whence we received our laws. The following passage of great relevance appears in the well known and respected text, Gatley on Libel and Slander, 9th edition at page 514.
“There is no doubt that the English common law does not recognise a tort of invasion of privacy and does not therefore grant any direct action for such invasion”. The identical position obtains in Guyana.
In the English case Waynright and another -v-Home office (2004) 4 L. R. C. page 154, the House of Lords held inter alia that there was no common law tort of invasion of privacy. A similar position was arrived at by the House of Lords in Malone -v-Commission of Police  2 ALLER page 620 and by the Court of Appeal (United Kingdom) in Kaye -v- Robertson  FSR 62. The issue of right to privacy arose in New Zealand, a common law jurisdiction like Guyana, in the case of Hosking et al -v- Runting et al 2004 2 LRC page 65, where a magazine wanted to publish the photographs of two infant children taken out in a public place without the parents’ permission. The parents sued, claiming that the taking of the photographs and/or their publication without consent amounted to a breach of their children’s right of privacy.
The High Court of New Zealand held that New Zealand law did not recognise a tortuous cause of action in privacy based on publication of photographs taken in a public place.
Based on the aforesaid authorities, it is clear that the right to privacy is not known to the common law and, as stated above, not known to the laws of Guyana. The argument in respect of the breach of a right to privacy is therefore woefully misconceived. It is clear that the matters contained in the recorded conversation are matters of high public interest; they raise issues which touch and concern the internal security of Guyana; and they bring into question the conduct of Guyana’s premier law enforcement officer. It is respectfully submitted that this is information of which the public has a constitutional right to be apprised and which the media has commitment right and duty to disseminate.
In Hosking -v- Runting, (supra) the court made the following seminal observations:
“the importance of freedom of expression and the role of the media in a democratic society needs no emphasis. There is a strong public interest not only in the right to impart information, but also in the corresponding right of the public to receive it. Any limitations imposed upon freedom of expression, whether by statute or by development of the common law, should reflect established principles. If there was any right to privacy of the kind alleged, the court would have found it to be clearly overwhelmed by the right of freedom of expression…….”
I respectfully submit that, even if the law afforded a right to privacy in Guyana, having regard to the nature of the matters contained in the recorded conversation, and the status and standing of the persons allegedly engaged in that conversation, that right to privacy would have had to bend and bow to the constitutional right to free expression.
This has been submitted so that the lay public is not misled on vital matters of law.
Attorney-at-law Mohabir Anil Nandlall
(Kaieteur News, 03/23/ 06)
This statement he issued to sections of the media yesterday. However, it has no relevance since the communication was not intercepted.
3 (1) Except as provided in this section a person who intentionally intercepts a communication in the course of its transmission by means of a telecommunication system commits an offence and is liable on summary conviction to a fine not exceeding five million dollars and to imprisonment for a term not exceeding three years.
(2) A person does not commit and offence under this section if –
(a) the communication is intercepted in obedience to a warrant issued by a Judge under section 6;
(b) the communication is not intercepted in obedience to a warrant issued by a Judge but on the authority of a designated officer in the case of a national emergency or in responding to a case where approval for a warrant is impracticable having regard to the urgency of the case.
(3) The Court by which a person is convicted of an offence under this section may order that any device used to intercept a communication in the commission of the offence shall be forfeited and disposed of as the Court thinks fit.
(4) For the purpose of subsection (1), a communication shall be taken to be in the course of transmission by means of a telecommunications system at any time when the system by means of which the communication is being or has been transmitted is used for storing the communication in a manner that enables the intended recipient to collect it or otherwise have access to it.
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