Privacy and data protection from a gender perspective
One of the principles of the Human Rights-Based Principles (HRBP) is the principle of quality and non-discrimination. According to this principle that is embedded on international norms and standards, all human beings have equal rights and their dignity is inherent. This principle, therefore, upholds that all human beings are equal and no one should be discriminated against on several grounds among them sexual orientation and gender.
In this article we are going to look at gender in two ways;
1. Gender in terms of sex i.e. male or female
2. Gender in terms of sexual orientation i.e. heterosexuals and homosexuals which are called the LGBTQ
The sexual orientation of a data subject has been classified as sensitive personal data under section 2 of the Data Protection Act, 2019. In Kenya, the right to privacy is enshrined in Article 31 of the Constitution of Kenya, 2010. However, the Constitution of Kenya,2010 does not provide for sexual orientation. This is provided for under Article 45 (2) of the Constitution, which stipulates that every person has a right to marry a person of the opposite sex… this, therefore, does not support same-sex marriage.
The Penal Code under sections 162 and 165 criminalizes same-sex marriages. Section 162 provides for sanctions for acts that it terms ”unnatural offences” among them being the same-sex marriage. Section 165 prohibits and criminalizes felonies termed as “grossly indecent practices” between male persons either in public or in the private. The difference between the two acts in section 162 and section 165 is that they attract different penalties. In E.G & 7 others versus the Attorney General, DKM& 9 others; Katiba Institute & Anor Petition No. 150 & 234 of 2016, the High Court refused to declare Section 162 of the Penal Code unconstitutional on the sanctions on same-sex marriage. According to the court, the upholding of these two sections would contradict and defeat the purpose and spirit of the provisions of Section 45 (2) of the Constitution of Kenya, 2010.
From these decisions of the Kenyan Courts, it has been criticized that failure to declare Sections 162 & 165 of the Penal Code as constitutional was a failure to uphold the right to privacy of LGBTQIA under Article 31 of the Constitution of Kenya ,2010. Therefore, this has been seen as one of the inadequate anti-discrimination protections that continue to impact the LQBTQIA Community.
Sex refers to being male or female. Data privacy rights are entitled to every human being regardless of whether they are male or female. However, sometimes men appear like they have been accorded more human rights than women. In the digital era of technology, women have not been left behind in using technology for instance they have embraced the use of menstrual tracker apps. Therefore, we should look into the privacy implication of these tracker apps on women’s personal data.
According to the UN Human Rights Council, privacy rights are mostly violated and abused by all human beings. However, research shows that women are more vulnerable. Women have encountered injustice in the online platform. This necessitated the need for a feminist internet that is more concerned with empowering equal rights, access and enjoyment of the internet by women. Women are more likely to be victims of gender-specific harms such as cyberbullying as compared to their male counterparts. Women are also more likely to share their privacy in health and reproductive matters violated. According to research by E.W Njuguna on the Perceptions of Violence Against Women on Their Social Media Platforms, around 63% of the 150 women she interviewed, had experienced sharing of unsolicited pornographic content while 40% experienced leakage of personal data.
Existing laws and policies: International, regional and national Laws
The Universal Declaration of Human Rights (UDHR) stipulates that all economic, social, political, cultural and civil rights underpin a life free from want and fear. These rights are alienable entitlements of all people, at all times and in all places regardless of their sex and sexual orientation. Article 2 adds that everyone is entitled to all rights and freedoms without distinction, such as amongst others’ sex. Article 2 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) guarantees that rights enunciated in the covenant are to be exercised without discrimination of any kind as to race colour, sex… International laws like the CEDAW and the African Charter, the African Convention, SADC in our region have also provided for the protection of the rights of women.
ECOWAS Supplementary Act A/SA.1/01/10 on Personal Data Protection, Article 31 only mentions “His”, this, therefore, leaves the question of the woman who is “her” since it lacks gender consideration for using male-gendered terms.
In Kenya, Article 31 of the Constitution of Kenya 2010, provides for the right to privacy. Another Kenyan law that provides for privacy rights is the Data Protection Act, of 2019. Section 2 of the Act terms revealing of natural personal information such as sex or sexual orientation as sensitive data. This, therefore, leaves an interesting topic since the Act talks about sexual orientation while previously Kenyan courts have failed to decriminalize same sex marriages.
The Data Protection Act, 2019, unlike the ECOWAS Supplementary Act A/SA.1/01/10 on Personal Data Protection uses gender-neutral terms such as “their” in place of “his” or “her” (See Sections 26,36 & 38).
A critical look at the data protection laws and regulations would therefore show that there has been very little specific expression of women in the data protection laws. For instance, the law does not provide for the position of the menstrual tracker apps and the data privacy implications of their use for women. The law has also not provided for the ability of women to privately access information about sexual and reproductive health online.
Other laws like the ECOWAS Supplementary Act A/SA.1/01/10 on Personal Data Protection have used some gender-specific pronouns. This therefore can be interpreted as an indicator of the insufficient accommodation and provision of women’s rights in the data privacy spectrum. Women continue to be vulnerable even in the issue of data protection and privacy rights.
To sum it up, the link between data protection and gender has not come out clearly. This involves both sex and sexual orientation. This has been seen in the gendered impacts of privacy invasions on women, men and individuals of diverse sexual orientations.
Nancy Gacheru is an Advocate of the High Court of Kenya, a Legal Researcher and a Writer from Mombasa, Kenya. She is passionate and particularly interested in data governance, advocacy for digital rights and gender issues; specifically women’s rights.