Table 5: HIV, AIDS and the Right to Privacy
Examples of Human Rights Violations
- A person is tested for HIV without his or her consent.
- A hospital or health care worker fails to maintain confidentiality of a patient’s HIV status or medical records.
- Government requires registration by name of all people living with HIV.
- Government requires disclosure of HIV status on certain forms such as sick-leave certificates, job applications, and medical prescriptions.
- Penal code criminalizes certain sexual acts between consenting adults, such as fornication, oral sex, anal sex, or adultery.
|Human Rights Standards||Treaty Body Interpretation|
|ICCPR 17(1): No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honor and reputation.
ICCPR 17(2): Everyone has the right to the protection of the law against such interference or attacks.
|HRC [Jurisprudence]: In finding that the right to privacy is violated by laws that criminalize homosexual acts between consenting adults, the Human Rights Committee noted that “…the criminalization of homosexual practices cannot be considered a reasonable means or proportionate measure to achieve the aim of preventing the spread of HIV and AIDS…[B]y driving underground many of the people at risk of infection…[it] would appear to run counter to the implementation of effective education programmes in respect of the HIV and AIDS prevention.” Toonen v. Australia, CCPR/C/50/D/488/1992 (March 31, 1994).|
|ICESCR 12(1): The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.||CESCR: Recommending to Moldova that “the state party ensure the confidentiality of a patient’s HIV status, including through reforming the law on HIV/AIDS, and reform of the data management system on HIV/AIDS. The committee also recommends that the state party take steps to eliminate the mandatory indication of disease codes on all medical sick leave forms.” E/C.12/MDA/CO/2 (CESCR, 2011)|
|CEDAW 12(1): States Parties shall take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health care services.||CEDAW Committee General Recommendation No. 24: Explaining that “[t]he issue of HIV/AIDS and other sexually transmitted disease are central to the rights of women and adolescent girls to sexual health. . . . In particular, States parties should ensure the rights of female and male adolescents to sexual and reproductive health education by properly trained personnel in specially designated programmes that respect their rights to privacy and confidentiality.” Para. 18 (20th Session, 1999).
CEDAW Committee General Recommendation No. 24: explaining that “States parties should also, in particular . . . (e) Require all health services to be consistent with the human rights of women, including the rights to autonomy, privacy, confidentiality, informed consent and choice . . . .” Para. 31 (20th Session, 1999).
CEDAW Committee: recommending to Zambia that it “undertake awareness-raising campaigns throughout the state party and among personnel in multiple sectors of government in respect of the prevention, protection and maintenance of confidentiality in order to systemize and integrate approaches for combating HIV/AIDS.” CEDAW/C/ZMB/CO/5-6 (CEDAW, 2011)
|Human Rights Standards||Case Law|
|ECHR 8(1): Everyone has the right to respect for his private and family life, his home and his correspondence.
ECHR 8(2): There shall be no interference by a public authority with the exercise of this right except such is in accordance with the law and is necessary in a democratic in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
|ECtHR: “As the spouse of a Russian national and father of a Russian child, the applicant was eligible to apply for a residence permit by virtue of his family ties to Russia . . . . For his application to be completed, he needed to submit to HIV-testing and enclose a certificate showing that he was not infected with HIV . . . . After the test revealed his HIV-positive status, his application for a residence permit was rejected on account of the absence of the mandatory HIV clearance certificate.” “Taking into account that the applicant belonged to a particularly vulnerable group, that his exclusion has not been shown to have a reasonable and objective justification, and that the contested legislative provisions did not make room for an individualised evaluation, the Court held that the applicant was a victim of discrimination on account of his health status in violation of Art. 14, taken together with Art. 8. Kiyutin v. Russia, 2700/10 (March 10, 2011).
ECtHR: The applicant’s HIV status was published in the newspaper claiming that the diagnosis was confirmed by the local hospital. The Court explained that “the Court has previously held that the protection of personal data, not least medical data, is of fundamental importance to a person’s enjoyment of his or her right to respect for private and family life as guaranteed by Article 8 of the Convention. Respecting the confidentiality of health data is a vital principle in legal systems of all Contract Parties to the Convention. The above considerations are especially valid as regards the protection of the confidentiality of a person’s HIV status.” The Court found that “State failed to secure the applicant’s right to respect for her private life.” Biriuk v. Lithuania, 23373/03, para. 39 (November 25, 2008).
ECtHR: “In her application to the Commission the applicant complained, amongst other things, about the failure of the Finnish authorities to prevent the disclosure by the press of her identity and her medical condition as an HIV carrier . . . The Court thus reaches the conclusions that there has been no violation of Article 8 of the Convention (art. 8)(1) with respect to the orders requiring the applicant’s medical advisers to give evidence or (2) with regard to the seizure of her medical records and their inclusion in the investigation file. On the other hand, it finds (3) that making the medical data concerned accessible to the public as early as 2002 would, if implemented, give rise to a violation of Article (art. 8) and (4) that there has been a violation thereof (art. 8) with regard to the publication of the applicant’s identity and medical condition in the Court of Appeal’s judgment.” Z v. Finland, 22009/93, para. 62 (February 25, 1997).