Credit: UN Photo / Jean-Marc Ferré
On March 26, 2015, the UN Human Rights Council adopted a resolution which establishes a mandate on the right to privacy in the digital age and creates a new Special Rapporteur on the Right to Privacy. See UN Human Rights Council, Resolution 28/L.27, Resolution on the right to privacy in the digital age, UN Doc. A/HRC/28/L.27, 24 March 2015. [OHCHR Press Release] This resolution, which was adopted during the 28th regular session of the Human Rights Council, reaffirms the right to privacy; recognizes the global and open nature of the Internet; affirms that the right to privacy must be protected both online and offline; and, most significantly, creates the position of Special Rapporteur, or independent expert, for a period of three years to promote and protect this right. The resolution follows an earlier Resolution on the right to privacy in the digital age adopted by the General Assembly in December 2014. See UN General Assembly, Resolution 69/166, The right to privacy in the digital age, UN Doc. A/RES/69/166, 10 February 2015. The Human Rights Council will appoint the Special Rapporteur at the 29th regular session of the Human Rights Council which will be held from June 15 to July 3, 2015.
Mandate and Working Methods
According to the resolution, the mandate of the Special Rapporteur is to promote and protect the right to privacy through efforts including gathering information from States, the United Nations, and other stakeholders, including regional human rights mechanisms, national human rights institutions, civil society organizations, and the private sector; identify obstacles to the right to privacy and make relevant recommendations to the Human Rights Council; participate in international conferences to promote the mandate; and integrate a gender perspective throughout this work. The Special Rapporteur is also tasked with the following: raise awareness of the importance of this right as well as provide individuals whose right to privacy has been violated with access to effective remedies that are consistent with international human rights obligations; report on alleged violations, as well as progress, to the Human Rights Council and the United Nations High Commissioner for Human Rights; and submit an annual report to the Council and to the General Assembly. See UN Human Rights Council, Resolution 28/L.27, Resolution on the right to privacy in the digital age, UN Doc. A/HRC/28/L.27, 24 March 2015, para. 4. The resolution calls upon all Member States to support this new mandate, including by providing all necessary information requested by the Special Rapporteur, responding to urgent appeals and other communications, responding favorably to requests to visit, and implementing recommendations. Id. at para. 6.
History of Human Rights Council Resolution
Previous to the recent adoption of the current resolution, the General Assembly adopted Resolution 69/166 concerning the right to privacy in the digital age during its 69th session. See UN General Assembly, Resolution 69/166, The right to privacy in the digital age, UN Doc. A/RES/69/166, 10 February 2015. [UN Press Release] This resolution followed the General Assembly’s earlier adoption of a Draft Resolution in 2013 supporting the right to privacy at its 68th session in December 2013. [UN Press Release] See UN General Assembly, Draft Resolution XI The right to privacy in the digital age, UN Doc A/68/456/Add.2*, 10 December 2013.
The 2015 General Assembly Resolution emphasizes the right to privacy as an international human rights obligation established in Article 12 of the Universal Declaration of Human Rights and Article 17 of the International Covenant on Civil and Political Rights and further explained by Human Rights Committee General Comment 16. See UN General Assembly, Resolution 69/166, The right to privacy in the digital age, UN Doc. A/RES/69/166, 10 February 2015, para. 1. The resolution notes that surveillance and collection of personal data, when unlawful or arbitrary, violates the right to privacy and that when surveillance of digital communications is conducted, it must conform with international human rights obligations. Id. at para. 4. The resolution also notes that businesses are responsible for respecting human rights under the Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework. Id. at preamble. It calls upon States to, among other things, provide those whose right to privacy has been violated with access to effective remedies in line with international human rights obligations. Id. at para. 4. The resolution ends by encouraging the Human Rights Council to remain active in ensuring the right to privacy in the digital age in order to identify principles, standards, and best practices concerning the promotion and protection of the right, and to consider the creation of a mandate for the Special Rapporteur on the right to privacy. Id. at para. 5.
In addition to these two General Assembly resolutions, additional related efforts that preceded the adoption of the Human Rights Council resolution included a statement by President Dilma Rousseff of Brazil to the General Assembly in 2013, in which she spoke of the right to privacy of individuals as well as the sovereignty of Brazil and linked the right to privacy to the freedom of expression and opinion as well as democracy. She spoke of the fact that the right to privacy affects the international community and called upon the UN to take a “leading role” in efforts to regulate State conduct with respect to activities of espionage, for example. An additional effort that preceded the adoption of the recent resolution is a 2014 report on “The right to privacy in the digital age” by then UN High Commissioner on Human Rights, Navi Pillay. See UN General Assembly, The right to privacy in the digital age, UN Doc. A/HRC/27/37, 30 June 2014.
Previous and Ongoing Advocacy
Efforts to promote the right to privacy and specifically the creation of a Special Rapporteur on privacy have involved many civil society organizations. Multiple human rights NGOs, including Amnesty International, Article 19, Human Rights Watch, the International Federation for Human Rights, and Privacy International, whether independently and/or in coalition with other organizations, wrote letters to Member States of the Human Rights Council and the Council itself to encourage them to support the establishment of a UN Special Rapporteur.
For example, as recently as March 2015, a coalition of 92 organizations submitted an oral statement to the 28th Session of the Human Rights Council calling on the Council to establish a UN Special Rapporteur on the right to privacy. Previously, a coalition of organizations submitted a joint letter to governments in January 2015 urging them to support the creation of the Special Rapporteur at the Human Rights Council’s 28th Session. Many of these organizations had also submitted a joint civil society statement to the 27th session of the UN Human Rights Council in September 2014 supporting the Office of the High Commissioner for Human Rights on the need for the creation of a special procedures mandate on the right to privacy.
Civil society organizations that had advocated for the creation of the Special Rapporteur on Privacy have noted the significance of this development. For example, Article 19 has tied the right to privacy to the right to freedom of expression, emphasizing that both rights are especially critical for journalists and human rights defenders. [Article 19] Similarly Human Rights Watch has noted the relationship between the right to privacy and freedom of expression, assembly, and association, noting that human rights defenders in particular face serious threats due to digital surveillance and the collection of personal data. [Human Rights Watch] Since the adoption of the resolution, a group of NGOs has compiled an outline of qualifications that they believe are most relevant in selecting and appointing the Special Rapporteur, intended to interpret the criteria established by the Council.
United Nations Special Procedures
The UN Human Rights Council establishes special procedures to promote and monitor human rights worldwide. Special procedures are independent experts appointed through country-specific or thematic mandates. These independent experts can be Special Rapporteurs or working groups that document best practices in ensuring a right; obtain information from relevant stakeholders such as States or businesses; carry out State visits; consult with relevant stakeholders; make recommendations to States on the implementation of the right; and report to the Human Rights Council and the General Assembly.
For more information on the United Nations and the Human Rights Council’s special procedures, visit IJRC’s Online Resource Hub.