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APC welcomes the groundbreaking report The right to privacy in the digital age released yesterday by Navi Pillay, the United Nations High Commissioner for Human Rights. The report affirms that the international human rights framework for the promotion and protection of the right to privacy applies online and that governments have been failing in their obligations.

With careful analysis and based on more than 50 submissions, the report makes five main findings and recommendations including:

  • Mass surveillance by its very nature interferes with the right to privacy, regardless of whether such data is used, and also interferes with other human rights: “Mass or ‘bulk’ surveillance programmes may thus be deemed to be arbitrary, even if they serve a legitimate aim and have been adopted on the basis of an accessible legal regime. In other words, it will not be enough that the measures are targeted to find certain needles in a haystack; the proper measure is the impact of the measures on the haystack, relative to the harm threatened; namely, whether the measure is necessary and proportionate.”

  • Mandatory retention of third-party data is not necessary nor proportionate. Intergovernmental intelligence-sharing regimes are contrary to human rights law: “Secret rules and secret interpretations – even secret judicial interpretations – of law do not have the necessary qualities of law.”

  • Human rights apply regardless of frontiers and without discrimination – governments cannot avoid human rights obligations on grounds of extraterritoriality: “… a State may not avoid its international human rights obligations by taking action outside its territory that it would be prohibited from taking ‘at home’ …. To conclude otherwise would not only undermine the universality and essence of the rights protected by international human rights law, but may also create structural incentives for States to outsource surveillance to each other.”

  • Business and the private sector have been facilitating surveillance and must take more action to uphold human rights (specifically drawing on the Guiding Principles on Business and Human Rights): “The responsibility to respect human rights applies throughout a company’s global operations regardless of where its users are located, and exists independently of whether the State meets its own human rights obligations.”

  • Finally, and significantly for the upcoming Internet Governance Forum, the report calls for multi-stakeholder efforts to address the challenges of the right to privacy in the context of modern communications technology: “This process should include a dialogue involving all interested stakeholders, including Member States, civil society, scientific and technical communities, the business sector, academics and human rights experts.”

The report sets a compelling and unequivocal foundation for the Human Rights Council panel on privacy in the digital age which will take place in September and the UN General Assembly consideration also due in September.

“We welcome this report and congratulate Navi Pillay and her Office on this important work. We look forward to the new High Commissioner for Human Rights continuing the focus on this issue and committing to taking it into and beyond the HRC 27 session,” said APC Human Rights Specialist Joy Liddicoat.

“We also want to support the consideration of other rights and freedoms that surveillance affects, but which were beyond the scope of this report, including the right to health, freedom from discrimination, women’s rights and sexual rights. We will be focusing on bringing attention to these issues in the coming months,” Liddicoat said.

This report is a powerful addition to growing recognition that the same human rights we have offline also apply online. APC believes this will be an important tool in advancing the global debate on international human rights norms in the digital age, and in pushing for reform at the national level.

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