Prof. Mohamed Kamal Charfeddine
Professor of Private Law – Faculty of Law and Political Science – University of Almanar – Tunisia

Abstract:

The research proceeds from the observation that the protection of private life is being consolidated and confirmation in international instruments, constitutions and internal laws, at the same time, it is facing a variety of new challenges posed by social changes and technological and scientific developments. Article 24 of the new Tunisian Constitution states: “The State shall protect private life, the inviolability of the home and the confidentiality of correspondence, communications and personal data.” The 1959 Constitution was not explicit in ensuring the protection of private life. The new Constitution also provides for “freedom of opinion, thought, expression, media and publication” (Chapter 31) and the Constitution has numerous references to ensure the inviolability and dignity of the individual.
The protection of private life is one of the well-established guarantees in the Arab-Islamic civilization, which is linked to the noble value of protecting the dignity of the individual from every violation in order to prioritize human dignity. The explicit constitutional adoption of this guarantee in the international instruments and in the Constitution has not prevented exacerbating the aspects of undermining it, due to scientific and cognitive developments in general.
This study will focus on two aspects of this contemporary challenge: the first relates to the right to identity and what it may sometimes lead to of prejudice to the private life of individuals. Every human being has the right to know his or her true identity, which is an important part of his personality. The scientific development now allows, thanks to genetic analysis, breaking the silence and revealing the biological identity of the individual. Therefore is it possible to address this right to identity by adhering to the right to physical inviolability for the individual required to undergo genetic analysis when refusing to do so? The problem is not resolved clearly in the laws, which is the question of “preference” between basic rights, the right to identity faces, in this form, the right to maintain physical inviolability. It is a typical problem that is repeated in other areas and stands out through competing fundamental rights. Going into this first question raises a fundamental question: What is the criterion of “preference” between these two rights related to private life? Research on the subject also highlights that “competition” between fundamental rights is an implicit hypothesis. The subject raises a more general question relating to the nature, legality and limitations of fundamental rights related to the protection of private life.
The second topic is related to ensuring the protection of the personal data of the individual, which is a guarantee that risks the exercise of the right to information, freedom of expression and the need to organize society. This also competes with different basic rights. How can the constitutional judiciary as well as the judicial judiciary decide the issue and on what basis? Are the guarantees surrounding the constitutional right to protect personal data sufficient to immunize these data in all its aspects (image protection – protection of health data – protection of beliefs – protection of identity – protection of fingerprints…). The development of the capabilities of States and some individuals to control and store personal data, on the one hand, and the continuous pursuit of information and dissemination, raises a debate about the nature of the mechanisms required for their protection and the need to develop and support them. From a theoretical point of view, it is difficult to ensure the effectiveness of the basic constitutional right in the face of diverse contemporary challenges.
Key words:
Right to protecting private life, traditional guarantees, crowding out between the right to protecting private life and freedom of publication and expression, Preference criteria, Developing traditional guarantees.

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