The newly appointed Special Rapporteur on the right to privacy, Joseph Cannataci, presented his first report at the 31st regular session of the United Nations Human Rights Council, outlining the priorities for his mandate, including clarifying the legal standards and a thematic focus on online privacy. See Report of the Special Rapporteur on the right to privacy, Joseph A. Cannataci, UN Doc. A/HRC/31/64, 8 March 2016. The Special Rapporteur in his report marked the task of formulating a universal definition of privacy as a high priority item for him in the future. Id. at para. 25. The report also identifies a number of issues for the Special Rapporteur to prioritize and clarify in the future based on additional consultations with stakeholders. See id. at para. 3. Mr. Cannataci’s consultations so far have emphasized the issues of privacy safeguards and remedies that transcend borders as they relate to the internet, and the thematic issues identified by the report reflect topics related to those issues. Id. at paras. 6 and 7. Additionally, the report outlines a 10-point action plan for Mr. Cannataci in moving forward with his mandate and makes several initial observations on the state of the right to privacy. See id. at paras. 29-42, 46.
Although the concept of privacy is globally understood, a definition of privacy that is binding and universal does not exist. Id. at para. 20. The right to privacy is recognized in Article 17 of the International Covenant on Civil and Political Rights (ICCPR), as well as in Article 12 of the Universal Declaration of Human Rights (UDHR), and reaffirmed in Resolution 28/16 adopted by the Human Rights Council. See id. at para. 21. The Special Rapporteur asserts that the legal framework on the right privacy is severely limited in its ability to protect that right without a universal definition of privacy. See id.
In order to develop a lasting, relevant definition of privacy, the Special Rapporteur has prioritized fostering a better understanding of what privacy means to different people in different places and circumstances. See id. at para. 23. In his view, legal standards and principles on the right to privacy are outdated and increasingly irrelevant with “the passage of time and the impact of technology, taken together with the different rate of economic development and technology deployment in different geographical locations.” Id. at para. 22. Therefore, the previously established legal standards must be re-assessed to make them more useful and relevant to the current time. Id. at para. 22. However, the Special Rapporteur reports that he will focus on and draw out the fundamentals or the core values of the right to privacy and avoid debates on the cultural or other perceived differences in the understanding of privacy. See id. at para. 25.
The report also identifies the limited focus of the Special Rapporteur on informational privacy, such as the role of privacy in affecting the flows of information within society, and not encompassing issues such as abortion. See id. at para. 24. The report acknowledges that other rights, such as the rights to freedom of expression and freedom of access to publicly-held information, also impact the flow of information, and, therefore, the right to privacy should be viewed in conjunction with these other protections. See id.
The report lists seven overarching themes related to “safeguards aimed at protecting privacy and remedies for privacy breaches” as potential points of further study for the Special Rapporteur. Id. at paras. 6-7. The themes include: privacy and personality across cultures; corporate on-line business models and personal data use; security, surveillance, proportionality, and cyberspace; the impact on privacy of open data and Big Data analytics; genetics and privacy; privacy, dignity, and reputation; and biometrics and privacy. See id. at paras. 7-15.
Addressing some of these thematic areas, such as personality across cultures and dignity and reputation, require close co-operation with civil society or other UN bodies, according to the report. See id. at paras. 8, 14. In particular, the study on privacy and personality across cultures will involve collaboration with other UN Special Rapporteurs and a possible major international conference in 2016 to address the issue. See id. at para. 8. Further, Mr. Cannataci has already engaged in discussions with the Special Rapporteur for freedom of expression in an effort to explore future collaboration on the topic of privacy and personality across cultures. See id.
Security, surveillance, proportionality, and cyberspace remained at the forefront of the Special Rapporteur’s attention for 2015 and 2016, and the report reveals several examples of States’ efforts to legalize the use of particular privacy-intrusive measures by law enforcement and intelligence agencies. See id. at para. 10. Therefore, the Special Rapporteur has continued to engage in conversations with law enforcement and intelligence agencies to better understand their concerns and to recognize best practices while identifying practices or policies that pose an unacceptable threat to the right to privacy. See id. at para. 11.
The report highlights important developments in 2015, including in the United States and the Netherlands regarding legislation that would require decryption of citizen’s data for government access. See id. at paras. 29 and 30. In January 2016, the Dutch government took an official stance against government use of encryption products to access communications, and in October 2015, the executive branch of the United States government decided not to push for legislation that would require companies to provide the government with a way to view encrypted information. See id. at paras. 30 and 31. In particular, the report highlighted the legal dispute between Apple and the FBI over encryption of the iPhone and noted that the Special Rapporteur’s stance on the matter conforms with the statement made by the United Nations High Commissioner for Human Rights on March 4, 2016. See id. The High Commissioner said that “[a] successful case against Apple in the US will set a precedent that may make it impossible for Apple or any other major international IT company to safeguard their clients’ privacy anywhere in the world.” [OHCHR Press Release]
The report notes other important developments on the right to privacy in 2015. Decisions by the Court of Justice of the European Union supported the end of mass surveillance, and the three joint United Kingdom Parliamentary committees recommended changes to the UK Government’s Investigatory Powers Bill. See Report of the Special Rapporteur on the right to privacy, Joseph A. Cannataci, paras. 32-33, 39. Additionally, the European Court of Human Rights held in Roman Zakharov v. Russia that the existence of a secret surveillance system violates the right to private life. Id. at paras. 37 and 38. The Special Rapporteur noted that the United States and China made significant progress towards ensuring cyberpeace by making efforts to establish norms on the use of cyberspace. Id. at para. 42.
Ten-Point Action Plan
The Special Rapporteur has created a ten-part plan outlining specific areas and issues he intends to address. Some of the items on this list include increasing awareness among citizens about privacy, implementing safeguards and effective remedies to avoid and deter infringement of privacy, and investing more energy into developing international law as it pertains to privacy. See id. at para. 46.
More specifically, when investing further in international law, the Special Rapporteur mentions the need to update existing legal instruments, such as the ICCPR, and expand the meaning of the right to privacy after achieving a better universal understanding of the core concepts of privacy. See id.
In April 2015, the UN Human Rights Council established a new special procedure on the right to privacy, which provided for the appointment of its first Special Rapporteur on the Right to Privacy in July 2015. See UN Human Rights Council, Resolution 28/16, Resolution on the right to privacy in the digital age, UN Doc. A/HRC/RES/28/16, 1 April 2015. The new special procedure followed the adoption of an earlier resolution in February 2015, the Resolution on the right to privacy in the digital age, which confirmed the global recognition of the right to privacy, and upheld the need for the right to privacy to be protected both online and offline. [IJRC]
The Special Rapporteur is charged with promoting and protecting the right to privacy through different methods, including gathering information from States and other stakeholders, identifying obstacles to the right to privacy, and reporting on alleged violations of the right to privacy. See OHCHR, Special Rapporteur on the right to privacy.