On 24 March 2015 in its 28th session held in Geneva, the UN General Assembly decided to create the post of a Special Rapporteur on the Right to Privacy in the Digital Age.
Article 12 of the Universal Declaration of Human Rights (UDHR) determines the right to privacy as follows:
‘No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.’
However, new technology can often be abused by state actors, by the business sector, or by criminals. Surveillance and interception systems being sold by European companies, for example, can lead to oppression of people who criticise their governments (see Incyder news on the report on Human rights and technology of the European Parliament Committee on Foreign Affairs).
Why a UN Special Rapporteur on privacy matters?
Deep concern has been expressed about the harmful impact of technological use by governments, companies and individuals that may lead to human rights violation, in particular the right to privacy as set out in Article 12 of the UDHR and Article 17 of the International Covenant on Civil and Political Rights (ICCPR). In many states discussions have been sparked after the disclosure of the surveillance practices of law enforcement and intelligence agencies. These debates are also often accompanied by a call for privacy-enhancing laws and policies.
Over the past few years, the UN has approached this concern in various documents.
- In his 2013 report, the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression addressed concerns on national legal standards, underlining the urgent need for further research on surveillance activities and recommending the revision of national laws regulating these practices in line with human rights standards.
- The June 2014 report of the Office of the United Nations High Commissioner for Human Rights, entitled The right to privacy in the digital age,addressed several issues in the context of domestic and extraterritorial surveillance, the interception of digital communications, and the subsequent mass collection of personal data.
- In his 2014 report the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism examined the use of mass digital surveillance for counter-terrorism purposes.
Thirty candidates from across the globe were considered in the application process. Among the candidates was Dutch Data Protection Authority Chairman Jacob Kohnstamm as well as the former German Data Protection Commissioner Peter Schaar.
On July 3rd 2015, Professor Joseph A. Cannataci from Malta was appointed as the very first UN Special Rapporteur on the Right to Privacy. The Human Rights Council’s Consultative Group originally ranked Professor Cannataci second to Katrin Nyman-Metcalf, Head of the Chair of Law and Technology at Tallinn University of Technology, Estonia, but he was nonetheless recommended for the job by the President of the Human Rights Council, Joachim Ruecker.
This marks a special moment in the development of the digital era. His mandate plays a vital role in developing a common approach on the right to privacy. It ensures monitoring and reporting on its implementation as well as defining the scope of the right to privacy in the digital era. Equally critical will be the recommendations and ideas provided by the UN Special Rapporteur on how to issue authoritative guidance to states and to non-state actors such as in companies in order to prevent the violation of the individual’s right to privacy.
Who is the new UN Special Rapporteur on the Right to Privacy?
Professor Joseph A. Cannataci is Head of the Department of Information Policy and Governance in the Faculty of Media and Knowledge Sciences at the University of Malta. He brings to the role more than thirty years of experience in the field of privacy and data protection. Among other posts, he was Chairman of the Council of Europe’s Committee of Experts on Data Protection during the 1990s. His research activities have been supported by various high ranked institutions such as the British Academy, the Council of Europe, COST, UNESCO and the European Commission. His publications cover a wide range of topics related, for example, to data protection law, self-regulation and the Internet, on-line dispute resolution, and individual privacy. His teaching activities have included data protection law, freedom of information law, intellectual property rights in computer software, cyber-crime and computer contracts.
A way forward
One thing is certain: Professor Cannataci will face many challenges in the next three years. As states have different and sometimes controversial approaches on how to deal with privacy matters, he will, for example, have to figure out a way to bring states together at one level. He will also have to find a way to cooperate with companies, hopefully shedding more light on their practices in dealing with customers’ data. He will need to take advantage of his position to spread awareness on the potential violation of the right to privacy through trade activities, and in particular the selling of surveillance systems. Adding substance to questions regarding the principles of legality, necessity and proportionality will equally be expected of him, as will recommendations concerning the establishment of effective oversight.
Whether he will be able to take a leading position and provide practical recommendations for the protection of the right to privacy will very much depend on the cooperation he is offered by the many stakeholders, state- and non-state alike.
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