Privacy Rights of Children and Political Campaigning
It is important that we understand as we go into the silly season that it is not the Data Protection Act that gives us the right to privacy. Our right to privacy is guaranteed by our Charter of Fundamental Rights and Freedoms by virtue of being human beings living in Jamaica. The Data Protection Act only articulates what those specific rights are and how they are to be protected.
Of grave concern is the “liking” of a doctored video posted on social media of children identifying the Prime Minister as Hitler by the Chairman of the PNP Mr Fitz Jackson over the weekend. While this may have appeared to be funny and be the type of content that can get traction on social media, this was done at the expense of the dignity of the most vulnerable of our society, our children. While I am well aware that we do not have a culture of privacy and may not understand what it means when it comes to personal data, we all must have, or be aware of, a culture of decency and at a bare minimum place the best interest of our children above all especially our partisan political objectives.
The concept of the best interests of the child comes from Article 3 of the United Nations Convention on the Rights of the Child (UNCRC): “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” Article 13(3) (k(1)of our Charter of Fundamental Rights and Freedoms guarantees the right of every child to such measures of protection as are required by virtue of the status of being a minor or as part of the family, society and the State.
So, let us forget about our Constitution and the right to privacy and let us forget about the impending data protection act for a minute. Did the chairman of the PNP think about the impact his social media action may have on the children whose video he liked and caused to be spread on social media. In retrospect, has he now thought about his actions and the message he is sending to the parties social media political operatives? Did he think it was in the best interest of the children or within the realm of basic decency when he sought to weaponize children,to their detriment and to supposedly to his party’s political advantage.
Lest we forget, it is the same Party that successfully struck down the NIDS Act on the basis that it was a breach of our right to privacy. Coming out of that same decision our Chief Justice in adopting the language of another jurist said “ Privacy is not lost or surrendered because the individual is in a public space. Privacy attaches to the person since it is an essential facet of the dignity of the human being.” So, no it was not ok to use a video of children that was already in the public domain, especially where the video was doctored and served as a tool to spread an offensive political message.
The video that was liked and promoted by the chairman of the PNP on social media did not reflect a true account of what transpired as the video was doctored to carry a political party message, likening the Prime Minister to Hitler. One would recall it was in the very recent past that the then President of the PNP YO likened used her platform to carry this same message. Interestingly, a complaint was made to the Political Ombudsman and it was reported in the media that she ruled that this breached the Political Code of Conduct. It was further reported that she found that: “The references to the most despised leader of the 20th century were unnecessary and unhelpful and have fomented harm in the public space. Civil discourse on matters of public interest must not include name calling or harmful references.”
Even in the light of this adverse ruling by the Political Ombudsman, the chairman of the PNP sought to use children to carry the same egregious message. Did he think that because it came from the mouth of babes it was less egregious or less offensive to society?
This is now not only an issue for the Political Ombudsman to revisit but in keeping with its charter, to safeguard the rights of our children, the Children’s Advocate must now demonstrate that there is an appreciation that child abuse is not only physical.
If nothing else, a fulsome investigation ought to be undertaken by her office to determine whether the fundamental rights of the children were breached and determine if they suffered any damage or distress. Because we are such a violent society one may ask, comparatively speaking, what is the big deal all about. As has often been said , the strength of a nation is reflected in how we treat the most vulnerable of our society. Further this is what the state by virtue of our Constitution is required to do.
Let us be clear, had the Data Protection Act been promulgated, in addition to being a breach of their constitutional right to privacy, it would also have been a criminal offense, as such these are not matters to be taken lightly.
Let us use this as a learning opportunity as it relates to the right to privacy and the impact of the NIDS decision and what will be required of us on the passage of the Data Protection Act. If it is there were an appreciation of the right to privacy especially of the most vulnerable of our society this, I am hoping, could never have happened. That however does not explain how this happened when we should have some modicum of decency. Even in the absence of decency the Political Ombudsman ruled on this issue already and involving children would only exacerbate the situation. In short the action of Mr. Fitz Jackson was unacceptable and this is now his opportunity to demonstrate leadership and if anything apologize to the children he chose to weaponize by supporting a social media video post that was doctored.
Chukwuemeka Cameron is an Attorney with a Masters in Information Technology and founder of Design Privacy, a consulting firm that helps you comply with privacy laws and and build trust with your customers. Feedback can be sent to email@example.com