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Privacy denotes a sphere of an individual's life wherein they are exempt from legal accountability or punitive measures, and regarding which others possess no right of entry, information acquisition, or intervention without consent. Within this private sphere, individuals exercise autonomy in decision-making. The scope of privacy expands or contracts depending on cultural norms and the nature of social governance.

While the term "privacy" is modern and does not appear explicitly in religious texts, various Islamic teachings, rulings, and principles function as manifestations of the Islamic Sharia's protection of individual privacy. These include the prohibition of espionage into personal affairs and the information of others, the regard for the honor of a believer as possessing the same sanctity as their blood, the prohibition of backbiting, the prohibition of consuming wealth through illicit means, the condemnation of evil suspicion, the prevention of spreading indecency, and the prohibition of entering homes without permission.

Muslim and Shi'a scholars have identified several foundations for the recognition and protection of privacy, including the support for individual autonomy, human dignity, the prevention of oppression, and the preservation of a believer's reputation. Shi'a teachings and juristic sources elucidate strategies for protecting privacy and preventing its violation. These encompass deterrent measures against infringing upon one's own or others' privacy—such as the prohibitions against backbiting, eavesdropping, and spreading indecency—and the protection of privacy through jurisprudential rules like the Rule of Respect, the Rule of La Darar, and the Rule of Non-Wilaya, as well as the establishment of penalties for privacy violators.

Regarding the relationship between enjoining the good and forbidding the evil and privacy, it is established that enjoining the good and forbidding the evil is not permissible in personal aspects of life that lack public manifestation; its legitimacy is restricted to instances where an individual's behavior or beliefs enter the public sphere. Jurists have deemed government surveillance within the sphere of individual privacy permissible only when necessitated by security, expediency, and the preservation of the system.

Status and Importance

Imam Khomeini:

"No one has the right to enter anyone's house, shop, or personal workplace without the owner's permission, or to detain someone, or to engage in pursuit and surveillance under the pretext of discovering a crime or the commission of a sin... or to listen to another's telephone or tape recording under the pretext of discovering a crime or a center of sin, or to install listening devices for the discovery of sin and crime, no matter how great the sin may be, or to pry into people's secrets... all of these are crimes [and] sins... (Excerpt from the Eight-Point Decree of Imam Khomeini)."

According to Muslim researchers, although the specific term "privacy" is absent from religious texts[1] and juristic sources do not dedicate a codified, independent chapter to it, the components of privacy—including housing, property, secrets, personal and family information, communications, and individual honor—are respected throughout religious teachings and various chapters of fiqh.[2] Consequently, teachings, rulings, and principles such as the prohibition of espionage into personal affairs,[3] the equating of a believer's honor with their blood,[4] the prohibition of insulting a believer, the prohibition of backbiting,[5] the prohibition of consuming wealth through illicit means, the Principle of Bara'a, the condemnation of evil suspicion, the prevention of spreading indecency,[6] the prohibition of entering homes without permission,[7] the prohibition of disclosing secrets,[8] and the non-liability for damages inflicted upon a privacy violator (in self-defense)[9] are regarded as manifestations of Sharia's protection of privacy.[10]

The right to privacy, often termed the "right to be let alone," is considered a cornerstone for the realization of human rights in democratic systems, shielding individuals from intrusions into their private lives by others and from government intervention.[11] This right is among the most valuable concepts in legal systems, intrinsically linked to the preservation of dignity, reputation, freedom, independence, and human autonomy, thereby facilitating peaceful coexistence within society.[12]

Concept and Types of Privacy

Privacy refers to that sphere of an individual's life where they enjoy immunity from accountability and punishment, and where decision-making, information control, entry, and supervision remain exclusively within their purview.[13] This encompasses the residential home, the individual's body, reputation, private information, and communications.[14] Furthermore, privacy is recognized for legal entities, though this primarily pertains to their financial and commercial information.[15] The scope of privacy may vary based on culture, religion, the type of governance, and social conditions.[16]

Privacy is categorized into two domains: physical and virtual. Physical privacy includes the body, clothing, place of residence, and workplace.[17] Virtual privacy has emerged with the expansion of computer systems and the digital realm, assuming special importance due to the ease of access to the information of individuals and nations in this space.[18]

In certain aspects, privacy is treated as a religious ruling (ḥukm), particularly in cases involving personality, human dignity, spiritual identity, and sensitive personal data. In such instances, a person's ownership and control are not absolute; strictly speaking, one cannot waive these rights or authorize others to infringe upon them (for example, granting permission for others to engage in backbiting about oneself does not negate the prohibition of backbiting). However, in other aspects of privacy unrelated to spiritual reputation, privacy is considered an individual right (ḥaqq); here, the right-holder may grant permission for entry, such as allowing a guest into one's residence.[19]

Sharia Validity of Privacy

Several foundations have been articulated for the religious and Sharia-based recognition and protection of privacy, including: 1. Facilitating the growth and perfection of individual personality; 2. Preventing oppression; and 3. Preserving individual reputation.[20]

Support for Independence, Dignity, and Personality Growth

Researchers argue that human independence and freedom imply the capacity to decide and choose regarding one's actions, deeds, and speech. When this human right is disregarded, the individual's personality is damaged, leading to humiliation.[21] Thus, the prohibition of disclosing the confidential secrets of others, the forbidding of espionage and eavesdropping, and the immunity of the home are all instances of honoring the status of the individual.[22]

Preventing Oppression and Aggression

Violating the privacy of others is considered an instance of oppression (Zulm).[23] For example, entering property belonging to others without permission constitutes a fundamental infringement upon that person's authority and ownership, as well as a violation of their moral rights.[24] Such an act is characterized as oppression and aggression and is deemed haram.[25]

Preserving Human Reputation

In Islamic teachings, defaming an individual's reputation is condemned and considered haram; its preservation is emphasized with a gravity equal to that of life and property.[26] Indeed, in juristic texts, the obligation to defend one's reputation is positioned alongside the defense of human life.[27] On this basis, when a violation of privacy results in defamation, it is haram from a Sharia perspective.[28]

Strategies for Privacy Protection in Shi'a Teachings

In Shi'a teachings, particularly within Shi'a juristic sources, strategies for protecting privacy and preventing its violation have been elucidated. These are categorized as deterrent measures, supporting rules, and the determination of enforcement guarantees.[29]

Deterrent Measures

Shi'a thinkers, relying on verses and narrations, have derived several deterrent commands against behaviors that threaten individual privacy. These include juristic rulings against evil suspicion, preventing fault-finding, insulting and mocking others, the prohibition of monitoring private affairs and eavesdropping, the prohibition of spreading indecency and revealing secrets, and the prohibition of entering others' homes without the owner's permission.[30]

Support for Privacy in the Light of General Juristic Rules

Several juristic-legal rules exist through which privacy is recognized as an independent right, including the Rule of Respect, the Rule of Non-Wilaya, the Rule of La Darar, and the Rule of Authority over property.[31]

According to the Rule of Respect, all aspects of a human being—property, reputation, life, and moral rights—fall within the domain of respect, and no one has the right to infringe upon them.[32] Based on the Rule of Non-Wilaya, all humans are created free and are not inherently under the authority of others; except for God or one authorized by Him, no one holds the right of Wilaya over another.[33] Therefore, intervening in the private affairs of others requires authority, which, according to the Rule of Non-Wilaya, is not naturally possessed by others.[34] The Rule of La Darar is heavily relied upon to support privacy.[35] This rule is derived from the famous hadith "No harm shall be inflicted or reciprocated in Islam" (La darar wa la dirar fil-Islam), issued by the Prophet (s) regarding an incident involving the violation of a companion's privacy by Samura b. Jundab.[36] Under this rule, the infliction of any material or spiritual harm is forbidden.[37]

Determining Punishment for Privacy Violators

Jurists have issued fatwas prescribing rulings for privacy violators. According to Shahid al-Thani, if an individual attempts to pry into the private affairs of others, they must be prevented; if injury is inflicted upon the violator during this prevention, the defender incurs no liability.[38] Furthermore, according to Nasir Makarim Shirazi, a 14th-century AH Shi'a Marja', any infringement upon the material or spiritual rights of others necessitates compensation for the damages caused.[39]

Relationship between Privacy and Enjoining the Good and Forbidding the Evil

Religious scholars emphasize the necessity of defining the relationship between the obligation of enjoining the good and forbidding the evil and the scope of privacy, as conflicts may arise between these two concepts.[40] In this regard, it is argued that according to Islamic theoretical foundations, the protection of privacy is paramount in behavior that is entirely personal and devoid of social consequences.[41] On this basis—acknowledging the rights of God alongside the rights of people and society—if an action infringes upon the rights of God and society, the protection of that specific private act must be limited.[42]

Behaviors and beliefs are divided into two categories concerning the intersection of privacy and enjoining the good:

  1. Cases lacking a social dimension, which fall under the prohibition of espionage: In such instances, there are no grounds for enjoining the good and forbidding the evil, even if the individual commits a sin within this sphere. However, exceptions exist for egregious sins, such as homicide, where individual privacy may be violated to prevent the crime.[43]
  2. Behaviors and beliefs that assume a public dimension: If an individual commits a sin that produces social effects and compromises the public sphere, this becomes the locus for implementing the obligation of enjoining the good and forbidding the evil.[44]

Government Espionage in Privacy

Template:See Also While religious researchers maintain the prohibition of violating privacy as a primary ruling, they have also elucidated circumstances under which intelligence agencies are permitted to intrude upon individual privacy based on specific conditions (secondary ruling).[45] Accordingly, espionage by governments and intelligence agencies is considered legitimate under conditions such as preserving the interests and security of the Islamic system.[46] In cases where the interest served by surveillance outweighs the harm of violation—based on the principle of "prioritizing the more important over the important" (taqdim al-ahamm 'ala l-muhimm)—the prohibition is suspended. Indeed, in scenarios such as ensuring security and preserving the system, espionage becomes obligatory.[47]

The permissibility of government surveillance under these specific conditions is substantiated by arguments such as legitimate rational deduction and narrations permitting surveillance of government officials, judges, and witnesses.[48]

Monographs

Numerous books have been authored regarding the foundations and rulings of privacy in Sharia and Islamic law. Muhammad Surush Mahallati, a religious researcher specializing in political jurisprudence, has compiled two significant works: Mabani-yi harim-i khususi bar asas-i manabi'-i Islami (Foundations of Privacy Based on Islamic Sources) and Ahkam-i harim-i khususi bar asas-i manabi'-i Islami (Rulings of Privacy Based on Islamic Sources), both published by the Research Institute of Hawza and University and Samt Publications. Additionally, Baqir Ansari, a law professor at Shahid Beheshti University, has authored Huquq-i harim-i khususi (Privacy Law), also published by Samt Publications.

Notes

  1. ↑ Sarafarāzī, Nigarish-i fiqhī ḥuqūqī bar ḥarīm-hā-yi khuṣūṣī, p. 43.
  2. ↑ Shahbāz Qahfarukhī, "Ḥarīm-i khuṣūṣī-yi fīzikī-yi afrād dar āyinah-yi fiqh-i Imāmīyya wa ḥuqūq-i Irān", p. 56; Qanawātī & Jāwar, "Ḥarīm-i khuṣūṣī; ḥaqq yā ḥukm", pp. 8-9.
  3. ↑ Qur'an 49:12; Majlisī, Biḥār al-anwār, 1403 AH, vol. 72, p. 252.
  4. ↑ Hāshimī Khū'ī et al., Minhāj al-barā'a fī sharḥ Nahj al-balāgha, 1400 AH, vol. 8, p. 384; al-Dīnawarī, Fayḍ al-Bārī ʿalā l-Bukhārī, 1429 AH, p. 411.
  5. ↑ Anṣārī, al-Makāsib, 1415 AH, vol. 1, p. 342.
  6. ↑ Qur'an 24:19.
  7. ↑ Qur'an 24:27-28.
  8. ↑ Kulaynī, al-Kāfī, 1407 AH, vol. 2, p. 226.
  9. ↑ Kulaynī, al-Kāfī, 1407 AH, vol. 7, pp. 290-291.
  10. ↑ Sarafarāzī, Nigarish-i fiqhī ḥuqūqī bar ḥarīm-hā-yi khuṣūṣī, pp. 43-44; Qanawātī & Jāwar, "Ḥarīm-i khuṣūṣī; ḥaqq yā ḥukm", pp. 8-9.
  11. ↑ Fatḥī & Shāhmurādī, "Gustarih wa qalamraw-i ḥarīm-i khuṣūṣī dar faḍā-yi majāzī", p. 231; Mūsāzādeh & Muṣṭafāzādeh, "Nigāhī be mafhūm wa mabānī-yi ḥaqq bar ḥarīm-i khuṣūṣī dar niẓām-i ḥuqūqī-yi ʿurfī", p. 46.
  12. ↑ Anṣārī, "Ḥarīm-i khuṣūṣī wa ḥimāyat az ān dar ḥuqūq-i Islām, taṭbīqī wa Irān", p. 2; Mūsāzādeh & Muṣṭafāzādeh, "Nigāhī be mafhūm wa mabānī-yi ḥaqq bar ḥarīm-i khuṣūṣī dar niẓām-i ḥuqūqī-yi ʿurfī", p. 46.
  13. ↑ Iskandarī, "Māhīyyat wa ahammiyyat-i ḥarīm-i khuṣūṣī", p. 157; Anṣārī, Ḥuqūq-i ḥarīm-i khuṣūṣī, p. 38-39.
  14. ↑ Anṣārī, Ḥuqūq-i ḥarīm-i khuṣūṣī, p. 38-39.
  15. ↑ Anṣārī, Ḥuqūq-i ḥarīm-i khuṣūṣī, p. 232.
  16. ↑ Raḥmdil, "Ḥaqq-i insān bar ḥarīm-i khuṣūṣī", p. 121.
  17. ↑ Shahbāz Qahfarukhī, "Ḥarīm-i khuṣūṣī-yi fīzikī-yi afrād dar āyinah-yi fiqh-i Imāmīyya wa ḥuqūq-i Irān", pp. 58-68.
  18. ↑ Fatḥī & Shāhmurādī, "Gustarih wa qalamraw-i ḥarīm-i khuṣūṣī dar faḍā-yi majāzī", pp. 235-236.
  19. ↑ Qanawātī & Jāwar, "Ḥarīm-i khuṣūṣī; ḥaqq yā ḥukm", pp. 15-16.
  20. ↑ Mūsāzādeh & Muṣṭafāzādeh, "Nigāhī be mafhūm wa mabānī-yi ḥaqq bar ḥarīm-i khuṣūṣī dar niẓām-i ḥuqūqī-yi ʿurfī", p. 57.
  21. ↑ Mūsāzādeh & Muṣṭafāzādeh, "Nigāhī be mafhūm wa mabānī-yi ḥuqūq-i khuṣūṣī dar niẓām-i ḥuqūqī-yi ʿurfī", p. 58.
  22. ↑ Ḥusaynī & Barzū'ī, "Mabānī wa mu'allafah-hā-yi fiqhī-yi ḥimāyat az ḥarīm-i khuṣūṣī-yi afrād dar faḍā-yi majāzī", pp. 123-125; Mūsāzādeh & Muṣṭafāzādeh, "Nigāhī be mafhūm wa mabānī-yi ḥuqūq-i khuṣūṣī dar niẓām-i ḥuqūqī-yi ʿurfī", p. 60.
  23. ↑ Jāwar, Mabānī-yi Qur'ānī-yi ḥarīm-i khuṣūṣī-yi makānī, pp. 114-117.
  24. ↑ Khomeini, Kitāb al-bay, 1428 AH, p. 248.
  25. ↑ Fāḍil Lankurānī, Tafṣīl al-sharīʿa fī taḥrīr al-Wasīla, 1408 AH, p. 299.
  26. ↑ Nūrī, Mustadrak al-wasāʾil, 1408 AH, vol. 9, p. 136.
  27. ↑ Sabzawārī, Muhadhdhab al-aḥkām, 1413 AH, vol. 28, p. 158.
  28. ↑ Shahbāz Qahfarukhī & Masʿūdiyān, "Ḥimāyat az ḥarīm-i khuṣūṣī-yi ashkhāṣ az manẓar-i āyāt wa riwāyāt", p. 91.
  29. ↑ Kishtgar & Jāwar, "Rāhburdhā-yi fiqh-i Imāmīyya dar taḍmīn-i ḥaqq-i ḥarīm-i khuṣūṣī-yi shahrvandān", p. 25.
  30. ↑ Almāsī & Muḥammadiyān, "Milāk-hā-yi ḥarīm-i khuṣūṣī dar fiqh-i Imāmīyya wa ḥuqūq-i asāsī-yi Irān", pp. 35-36; Kishtgar & Jāwar, "Rāhburdhā-yi fiqh-i Imāmīyya dar taḍmīn-i ḥaqq-i ḥarīm-i khuṣūṣī-yi shahrvandān", pp. 29-30.
  31. ↑ Kishtgar & Jāwar, "Rāhburdhā-yi fiqh-i Imāmīyya dar taḍmīn-i ḥaqq-i ḥarīm-i khuṣūṣī-yi shahrvandān", pp. 32-35; Ḥusaynī & Barzū'ī, "Mabānī wa mu'allafah-hā-yi fiqhī-yi ḥimāyat az ḥarīm-i khuṣūṣī-yi afrād dar faḍā-yi majāzī", p. 121.
  32. ↑ Mūsawī Bujnūrdī, al-Qawāʿid al-fiqhiyya, 1401 AH, vol. 2, p. 83; Kishtgar & Jāwar, "Rāhburdhā-yi fiqh-i Imāmīyya dar taḍmīn-i ḥaqq-i ḥarīm-i khuṣūṣī-yi shahrvandān", p. 32.
  33. ↑ Imam Khomeini, Ṣaḥīfa-yi Imām, vol. 4, p. 141.
  34. ↑ Surūsh, Mabānī-yi ḥarīm-i khuṣūṣī bar asās-i manābiʿ-i Islāmī, pp. 96-97.
  35. ↑ Kishtgar & Jāwar, "Rāhburdhā-yi fiqh-i Imāmīyya dar taḍmīn-i ḥaqq-i ḥarīm-i khuṣūṣī-yi shahrvandān", pp. 33-34.
  36. ↑ Kulaynī, al-Kāfī, 1407 AH, vol. 5, p. 292; al-Shaykh al-Ṭūsī, Tahdhīb al-aḥkām, 1407 AH, vol. 7, p. 147.
  37. ↑ Kishtgar & Jāwar, "Rāhburdhā-yi fiqh-i Imāmīyya dar taḍmīn-i ḥaqq-i ḥarīm-i khuṣūṣī-yi shahrvandān", pp. 33-34.
  38. ↑ Shahīd al-Thānī, al-Rawḍa al-bahiyya, 1410 AH, vol. 9, p. 352.
  39. ↑ Makārim Shīrāzī, al-Qawāʿid al-fiqhiyya, vol. 2, p. 218.
  40. ↑ Rāʿī, "Ḥarīm-i khuṣūṣī wa amr be maʿrūf wa nahy az munkar", pp. 126-127.
  41. ↑ Authors Group, Falsafih-yi ḥuqūq, p. 274.
  42. ↑ Rāʿī, "Ḥarīm-i khuṣūṣī wa amr be maʿrūf wa nahy az munkar", p. 127.
  43. ↑ Imam Khomeini, Taḥrīr al-Wasīla, vol. 1, p. 480; Jawān Ārāstih, "Qalamraw-i sharʿī wa qānūn-i amr be maʿrūf wa nahy az munkar", pp. 267-269.
  44. ↑ Rāʿī, "Ḥarīm-i khuṣūṣī wa amr be maʿrūf wa nahy az munkar", pp. 129-130.
  45. ↑ Dargāhī, "Ḥudūd-i ikhtiyārāt-i dastgāh-hā-yi iṭṭilāʿātī dar wurūd be ḥarīm-i khuṣūṣī-yi afrād az manẓar-i fiqh-i Imāmīyya", p. 79; Akbariyan, "Barrasī-yi ḥukm-i sharʿī-yi raftār-i ḥukūmat dar jamʿ-i āwarī-yi iṭṭilāʿāt az ḥawzih-yi ḥarīm-i khuṣūṣī-yi ashkhāṣ", pp. 39-40.
  46. ↑ Dargāhī, "Ḥudūd-i ikhtiyārāt-i dastgāh-hā-yi iṭṭilāʿātī dar wurūd be ḥarīm-i khuṣūṣī-yi afrād az manẓar-i fiqh-i Imāmīyya", p. 77; Akbariyan, "Barrasī-yi ḥukm-i sharʿī-yi raftār-i ḥukūmat dar jamʿ-i āwarī-yi iṭṭilāʿāt az ḥawzih-yi ḥarīm-i khuṣūṣī-yi ashkhāṣ", p. 21; Sulaymānī, "Barrasī-yi wurūd be ḥarīm-i khuṣūṣī dar faʿʿāliyāt-hā-yi iṭṭilāʿātī-amniyatī dar chārchūb-i uṣūl wa qawāʿid-i fiqhī", p. 33.
  47. ↑ Muntaẓirī, Mabānī-yi ḥukūmat-i Islāmī, 1409 AH, vol. 4, p. 298; Mishkīnī, Iṣṭilāḥāt al-uṣūl, 1413 AH, p. 87; Dargāhī, "Ḥudūd-i ikhtiyārāt-i dastgāh-hā-yi iṭṭilāʿātī dar wurūd be ḥarīm-i khuṣūṣī-yi afrād az manẓar-i fiqh-i Imāmīyya", p. 91.
  48. ↑ Akbariyan, "Barrasī-yi ḥukm-i sharʿī-yi raftār-i ḥukūmat dar jamʿ-i āwarī-yi iṭṭilāʿāt az ḥawzih-yi ḥarīm-i khuṣūṣī-yi ashkhāṣ", p. 40; Sulaymānī, "Barrasī-yi wurūd be ḥarīm-i khuṣūṣī dar faʿʿāliyāt-hā-yi iṭṭilāʿātī-amniyatī dar chārchūb-i uṣūl wa qawāʿid-i fiqhī", p. 53.

References

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