Human Rights Responsibilities in the Digital Age

States, Companies and Individuals

Jonathan Andrew, Frédéric Bernard, Jonathan Andrew, Frédéric Bernard

• Publisher: Hart Publishing
• Year: 2021
• ISBN:
  9781509938858
• Edition: 1
• Topic: Jura
• Subtopic: Naturwissenschaft- & Technologierecht

This book examines the tangled responsibilities of states, companies, and individuals surrounding human rights in the digital age. Digital technologies have a huge impact – for better and worse – on human lives; while they can clearly enhance some human rights, they also facilitate a wide range of violations. States are expected to implement efficient measures against powerful private companies, but, at the same time, they are drawn to technologies that extend their own control over citizens. Tech companies are increasingly asked to prevent violations committed online by their users, yet many of their business models depend on the accumulation and exploitation of users' personal data. While civil society has a crucial part to play in upholding human rights, it is also the case that individuals harm other individuals online. All three stakeholders need to ensure that technology does not provoke the disintegration of human rights. Bringing together experts from a range of disciplines, including law, international relations, and journalism, this book provides a detailed analysis of the impact of digital technologies on human rights, which will be of interest to academics, research students and professionals concerned by this issue.

1

Introduction

JONATHAN ANDREW

I.The Evolution of Human Rights in the Digital Age

The value of existing human rights to both individuals and groups extends beyond their immediately apparent benefits: the enjoyment of interdependent rights, whether conscious or not, enables citizens to develop their own autonomy and identity. How does the shift of so many of our activities into the ‘cyber sphere’ influence our fundamental rights and thus our sense of identity?

It is almost two decades since 180 governments affirmed the applicability of the Universal Declaration of Human Rights to the online sphere at the first World Summit on the Information Society in 2003.¹ The United Nations Human Rights Council and General Assembly have frequently reiterated that the ‘same rights that people have offline must also be protected online’.² This approach reflects the expectation, ever since international human rights instruments were first formulated, that standards and fundamental principles will always apply regardless of advances in technology, and that, rather than seek to institute new rights for cyberspace, existing human rights should be extended to the online sphere. Nevertheless, due to the persistent lack of access to the internet in certain countries, often stemming from poverty or poor infrastructure, though also from both targeted and blanket shutdowns and other suppressive tactics by certain governments, the Human Rights Council has also repeatedly affirmed the importance of applying ‘a comprehensive human rights-based approach when providing and expanding access to the Internet’.³ The question as to whether there exist ‘digital rights’, borne of the evolving interactions exhibited in the digital sphere, remains open to discussion.⁴

It is apparent, however, that digital technologies are contributing towards shifts in the perceptions of fundamental rights such as freedom of expression and the right to privacy. On one hand, the functionality that digital communication channels provide has heightened the role of freedom of expression in enhancing the realisation of other interdependent fundamental rights. On the other, the widespread sharing of thoughts and opinions online would suggest that attitudes towards privacy and data protection are being recalibrated. Vast differences in the perceptions of privacy among citizens of different cultures and backgrounds might imply that the concept remains intrinsically nebulous.⁵ A key concern in this context is that privacy and data protection are critical to the wider impact of evolving digital technologies on other interdependent human rights. Citizens will likely press for revision or implementation of new legislation when they are able to apprehend the risk of interference in their fundamental rights. If the threat is difficult to conceive of, the call for specific or more extensive regulatory oversight is likely to be weakened. A re-evaluation of the proportionality of the data collection and processing taking place, for example, will take time, since many of the impacts of this monitoring may be imperceptible to the layperson.

The evolving nature of the interpretation of the principal instruments that safeguard fundamental rights is critical in this context. According to the European Court of Human Rights (ECtHR), for example, the European Convention on Human Rights (ECHR) is a living instrument anchored to the reality of the Member States in which it applies,⁶ a principle that is immediately relevant to the impacts of technological change on society. The Court has accordingly determined that the notion of ‘private life’ is a broad one, not susceptible to exhaustive definition;⁷ that ‘personal data’ is defined as ‘any information relating to an identified or identifiable individual’;⁸ and that ‘public information can fall within the scope of private life where it is systematically collected and stored in files held by the authorities’.⁹ These affirmations demonstrate the shifting scope of a human right in conjunction with technological change. For the courts, interpreting precepts anew for the situations that digital technologies present and reconciling those interpretations with precedent is a complex task.

It has been particularly interesting therefore to see how precedent has been applied to new and evolving situations, for example with regard to the appreciation of the chilling effect that mass surveillance may have on the individual and on populations as a whole. The case of Rotaru v Romania illustrates this point, where the ECtHR reiterated its finding from earlier cases that mass surveillance of populations could have a grave impact on the rights to privacy and family life, even when citizens are unable to substantiate whether they had indeed been subject to a form of monitoring.¹⁰

Subsequently, in the Smirnova v Russia case, the ECtHR elaborated the scope of protections pertaining to our consciousness, reflecting an evolving appreciation of the need to recognise less tangible aspects of the human personality. The notion of ‘private life’ encompasses the protection of

the moral and physical integrity of the individual, including the right to live privately, away from unwanted attention. It also secures to the individual a sphere within which he or she can freely pursue the development and fulfilment of his personality (emphasis added).¹¹

The Court has increasingly taken the opportunity in its deliberations to underscore how uninvited and intrusive attention inhibits a person’s capacity to form their own identity.

Courts have also been keen to review the necessity of measures, regulations and exemptions that governments have put in place in response to new technological capabilities – and exercised their powers to limit overly broad dispensations that effectively sidestep the safeguards for privacy and other dependent rights in the online sphere. In the Ryneš case, the Court of Justice of the European Union stated that the protection of the fundamental right to private life requires that ‘derogations and limitations in relation to the protection of personal data must apply only in so far as is strictly necessary’ (emphasis added).¹²

Also of importance in the context of our online interactions has been the elucidation of a less immediately palpable aspect of the intrinsic core of privacy, which is the value of the social dimension of human interactions to other interdependent human rights and to our own personal development. This was recognised in the Biriuk v Lithuania case, where the ECtHR’s judgment emphasised the intrinsic value of the protection of a person’s private life in allowing for their personal development, noting that its scope also encompasses a social dimension:

As to respect for the individual’s private life, the Court reiterates the fundamental importance of its protection in order to ensure the development of every human being’s personality. That protection extends beyond the private family circle to include a social dimension.¹³

Moreover, in Mikulić v Croatia, the Strasbourg Court held that private life ‘includes a person’s physical and psychological integrity and can sometimes embrace aspects of an individual’s physical and social identity’.¹⁴ The Court’s affirmation as to the scope of the protection given to a person’s private life, particularly as regards their psychological integrity, needs contextualising in respect of the consequences of surveillance and monitoring. In this regard the Court’s reaffirmation that respect for private life ‘must also comprise to a certain degree the right to establish relationships with other human beings’ is also relevant.¹⁵ Inherent to both points is the notion that the formation and development of a human’s personal integrity requires that a degree of shelter be given to the personal sphere from the pernicious effects of surveillance.

Notions of privacy are evolving in part as a result of our increasing reliance on connectivity and online services to enable and facilitate many aspects of our daily lives. This also raises questions as to whether the notion of the ‘right of access to the internet’ can be proven tenable and indeed whether it would further influence the scope of other associated and interdependent rights such as, inter alia, privacy and the right to data protection, freedom of peaceful assembly and association, and the right to freedom of expression.

Certain scholars have argued that the existing international human rights framework is no longer adapted to the scenarios we face in the online world.¹⁶ Given the huge shifts in power observed over the past decade as the largest technology corporations expand their global dominance and amass even greater influence, such a proposition merits due consideration. Modern digital technologies also challenge assumptions about jurisdiction and territoriality which are based, first, on the notion that location in itself matters and should determine the application of the law and, second, that the entities in question have an identifiable and stable spatial location, either inside or outside a determined territory.¹⁷ Technology gives rise to novel situations that continually challenge the application of legal precedent.

The chapters that follow illustrate how the extant legislative framework has addressed challenges brought about by technological innovation, but also expose areas in which the regulatory environment has lacked the necessary capacity for responsive and effective enforcement. They highlight the importance of the notion of ‘technological neutrality’ in laws that intend to regulate an open-ended process,¹⁸ where their provisions must necessarily incorporate sufficient resolution, clarity and distinction, while also allowing the scope for unanticipated advances in digital technologies.

As much of human activity continues to shift online, affording significant scope for the enjoyment of human rights, the capacity of different actors to infringe those rights is also considerable. Digital innovation is reshaping relationships between government, businesses and civil society, as well as the interdependencies between stakeholder obligations, responsibilities and duties.¹⁹

II.State Obligations to Respect, Protect and Fulfil Human Rights in the Digital Sphere

Human rights have been conceived, interpreted and have evolved primarily in terms of states’ obligations – and indeed of states’ capacity to effect control over their citizens. States are obliged to act so as to respect human rights in the digital realm: to refrain from violating the human rights that an individual or group may exercise online and also to abstain from employing digital technologies to violate those rights. In the digital age, the capabilities and methods through which oppressive measures can be enacted are significant.

As early as 1984, the ECtHR provided guidance on the principles governing interception and more general programmes of surveillance in relation to evolving monitoring capabilities:

In particular, the requirement of foreseeability cannot mean that an individual should be enabled to foresee when the authorities are likely to intercept his communications so that he can adapt his conduct accordingly. Nevertheless, the law must be sufficiently clear in its terms to give citizens an adequate indication as to the circumstances in which and the conditions on which public authorities are empowered to resort to this secret and potentially dangerous interference with the right to respect for private life and correspondence (emphases added).²⁰

This judgment is particularly valuable for its articulation of the criteria by which the notion of foreseeability is to be construed: foreseeability is primarily dependent on the provision of an adequate indication as to the circumstances and conditions under which monitoring may be lawfully employed. The Court’s statement does not address the measure deployed. This begs the question whether, with modern technological advances, a citizen can comprehend the possibility of an interference in her rights where she is wholly unaware as to the means at the disposal of public authorities.

The integration of large-scale data mining and artificial intelligence facilitates mass surveillance and predictive policing, and unduly influences behaviours and life choices. It can serve to generate statistical norms that are then used to categorise behaviours according to these standards. If monitoring of this nature encourages individuals to adopt behaviours perceived as ‘more normal’ and refrain from abnormal or ‘non-usual’ behaviours, it is highly intrusive to a person’s private life and severely inhibits intimacy and aspects of an individual’s identity linked to self-expression.²¹

Successive UN Special Rapporteurs on freedom of opinion and expression, as well as the Office of the High Commissioner for Human Rights, have underscored the importance of encryption to online communications and to the protection of the enjoyment of interdependent rights including the right to peaceful assembly and association, and fre...