The right to privacy in the digital age

In its resolution on the promotion and protection of human rights on the internet, in July 2012, the Human Rights Council affirmed “that the same rights that people have offline must also be protected online, in particular freedom of expression”. It was hailed as the first-ever UN resolution to affirm that human rights in the digital realm must be protected and promoted to the same extent and with the same commitment as human rights in the physical world.

Since then, dramatic revelations related to the scope of State surveillance regimes in some jurisdictions, including mass surveillance of private communications via online and mobile platforms, have provoked an international debate about the right to privacy versus national security.

At the 24th Human Rights Council meeting in Geneva, Austria, Germany, Hungary, Liechtenstein, Norway and Switzerland followed up on the initial discussion and organized an event to specifically focus on the protection of the right to privacy in the digital age.

Acknowledging that “dramatic technological developments… have increased the capacity of States and commercial actors for surveillance, decryption and mass data collection, which may severely intrude on people’s right to privacy”, the sponsoring States focused the event on the “critical question [of] how to strike an appropriate balance between legitimate national security concerns and individual liberties.”    

In her opening remarks, UN Human Rights Chief Navi Pillay said that while “modern communications technology provides a powerful tool for democracy… it has also contributed to a blurring of lines between the public and private sphere.”

“Concerns have been raised recently,” she said, “over the broad scope of security surveillance regimes and the potential for intrusions which have been facilitated by modern technologies.”

Speaking on behalf of the sponsoring States, Ambassador Dr. Hanns Schumacher of Germany said, “Every person is entitled to a ‘private sphere’ free from undue interference or surveillance by the State or other actors.”

Schumacher urged the international community and the Human Rights Council, in particular, to “strike a sound balance between legitimate public and security concerns and the fundamental human right to privacy in the digital age.”

Frank La Rue, the UN Special Rapporteur on the right to freedom of opinion and expression, addressing the side-event, reiterated one of the central tenets of the report he produced for the Council earlier in the year: “Privacy and freedom of expression are interlinked and mutually dependent; an infringement upon one can be both the cause and consequence of an infringement upon the other.”

An international debate should be held, La Rue said, and he called for a special thematic session of the Human Rights Council on the right to privacy saying it was time for all States to put in the open their views and perspectives on the issue.

Pillay stressed that both “effective national legal frameworks” and “effective enforcement” are critical to ensuring protection against unlawful or arbitrary intrusions on the right to privacy.  “Governments are entitled to gather and protect certain sensitive information,” the High Commissioner said, but they must “ensure full compliance with international human rights law.  Serious concerns are raised over the potential for national security overreach, without adequate safeguards to protect against abuse.”

The High Commissioner also underscored the responsibility of businesses to respect privacy rights in the digital age.

A group of 260 civil society organisations from all regions launched a set of principles at the event, the “International Principles on the Application of Human Rights to Communications Surveillance”. In a statement, the civil society groups said§ the principles represent an evaluative framework that constitutes “a set of standards that interpret States’ human rights obligations in light of new technologies and surveillance capabilities.”

1 November 2013