The Right to Privacy Revisited

Different International Perspectives

Özgür Heval Çınar, Aysem Diker Vanberg, Aysem Diker Vanberg, Özgür Heval Çınar

• Publisher: Routledge
• Year: 2021
• Print ISBN: 9781032171906
• eBook ISBN: 9781000529135
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This book focuses on the right to privacy in the digital age with a view to see how it is implemented across the globe in different jurisdictions.

The right to privacy is one of the rights enshrined in international human rights law. It has been a topic of interest for both academic and non-academic audiences around the world. However, with the increasing digitalisation of modern life, protecting one's privacy has become more complicated. Both state and non-state organisations make frequent interventions in citizens' private lives. This edited volume aims to provide an overview of recent development pertaining to the protection of the right to privacy in the different judicial systems such as the European, South Asian, African and Inter-American legal systems.

The chapters in this book were originally published as a special issue of The International Journal of Human Rights.

International law, surveillance and the protection of privacy

Kristian P. Humble

Abstract

The right to privacy is a fundamental human right under international law. The right to privacy for an individual is the right to hide or obscure elements of their life from the wider public. In the modern age, the need for privacy is becoming increasingly difficult in light of modern communication companies which seek to make once which was considered private, public. The right to privacy has historically not been at the forefront of discussions within the international community and the United Nations. This position changed after the Edward Snowden and Cambridge Analytica revelations. The focus from the international community is on addressing not only the practices of state sponsored surveillance but also surveillance undertaken by modern communications companies. This article will focus on how the United Nations, the international community and international law aim to bring surveillance practices in line with human rights law and what privacy means in the modern digital age. The first part of the article will look at the inherent right to privacy, the second part will cover the recent developments from the United Nations and international law and the third part will look at the challenges ahead in the modern age of surveillance and digital communication.

1. Introduction

The right to privacy is seen as a fundamental human right contained in the Universal Declaration of Human Rights (UDHR)¹ and the International Covenant on Civil and Political Rights (ICCPR).² The right to privacy, however, has historically not been at the forefront of discussions within the international community and the United Nations. This position changed in 2013 after the Edward Snowden revelations. The international community was focused on addressing not only on the practices of state sponsored surveillance but also surveillance undertaken by modern communications companies.³

The basis of the international community and the United Nations, in particular, was the application and interpretation of Article 17 of the ICCPR and more recently the United Nations Resolution of Privacy in the Digital Age⁴ and how to bring surveillance practices in line with human rights law and what is privacy means in the modern digital age.

The modern international law jurisprudence holds states accountable for their actions (not in all cases) based on the effective control test.⁵ There has also been a suggestion of a different approach which is based on virtual control within the legal boundaries of holding states accountable over there surveillance activities while upholding the individual’s right to privacy over their own communications.⁶

Recent events such as 2013 Edward Snowden and 2018 Cambridge Analytica revelations has shown that there needs to be an international legal solution to communication surveillance by states sometimes referred to as the Five Eyes⁷ states and by communication-based companies such as Facebook. Activities which use surveillance without an individual’s permission is in clear breach of Article 17 of the ICCPR. Despite the exposure of such practices (Snowden and Cambridge Analytica in particular) there has been a slow process of an agreement of how to bring these practices in line with international human rights law.

This article will deal with some of these challenges. The first part of the article will look at inherent right to privacy, the second part will cover the recent developments from the United Nations and international law, the third part will look at the challenges ahead in the modern age of surveillance and digital communication.

2. The meaning of privacy

The international community has been slow in responding to changes in technologies which are based on communication and data collection, leaving international law trying to catch up and regulate a growing concern for the protection of privacy of states and the individual.

Article 17 of the ICCPR 1966 states privacy as the following:

1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
2. Everyone has the right to the protection of the law against such interference or attacks.

In 1988 this was further expanded in General Comment No 16 on Article 17 ICCPR.⁸ This Comment explained:

1. Article 17 provides for the right of every person to be protected against arbitrary or unlawful interference with his privacy, family, home or correspondence as well as against unlawful attacks on his honour and reputation. In the view of the Committee this right is required to be guaranteed against all such interferences and attacks whether they emanate from State authorities or from natural or legal persons. The obligations imposed by this article require the State to adopt legislative and other measures to give effect to the prohibition against such interferences and attacks as well as to the protection of this right.
2. In this connection, the Committee wishes to point out that in the reports of States parties to the Covenant the necessary attention is not being given to information concerning the manner in which respect for this right is guaranteed by legislative, administrative or judicial authorities, and in general by the competent organs established in the State. In particular, insufficient attention is paid to the fact that article 17 of the Covenant deals with protection against both unlawful and arbitrary interference. That means that it is precisely in State legislation above all that provision must be made for the protection of the right set forth in that article. At present, the reports either say nothing about such legislation or provide insufficient information on the subject.

The ICCPR was in 1966 was not equipped to look at the threat to individual privacy from data collection and digital technologies because these technologies simply did not exist. Therefore, the definition of privacy is regarded as narrow in today’s technological advances in communication and data collection. The 1988 General Comment only goes further to distinguish the incoming threat of data collection by states and the protection of states from individual’s private data being interfered with. Again, however, a full appreciation of technologies concerning communication and information were not fully understood as the use of these technologies and the internet were in their infancy.

The way individuals communicate and the collection of data by states and technology companies seems to be commonly understood as being part of the digital age. But there needs to be discussion to look again at the General Comment from 1988 and an update for this new decade and beyond. The discussion was enhanced⁹ by the United Nations Special Rapporteur Frank La Rue¹⁰ and by the General Assembly.¹¹ The reason for an update is clear, there needs to be a fundamental understanding of what the right to privacy means and what it must protect in light of the obligations of not only states but the more difficult notion of companies under international law.

The current ‘General Comment to Article 17’¹² states that ‘the gathering and holding of personal information on computers, databanks and other devices by public authorities or private bodies must be regulated by law’.¹³ Also, it can be seen that this has been agreed upon by the Human Rights Committee (HRC).¹⁴

This guiding statement of Article 17 has been followed in a number of European Court of Human Rights (ECtHR) decisions. Indeed, the United Nations and the international community can take note of the ECtHR’s decision in Botta v Italy,¹⁵ MK v France,¹⁶ S and Marper v the UK ¹⁷ and Bensaid v the UK ¹⁸ that the notion of ‘private life is not an exhaustive decision’.¹⁹ The court, therefore, does not feel that a definition on what is a private life can ever be fully comprehensive and include all aspects that an individual might feel are private. The ECtHR also stated that the very ‘protection of personal data is of fundamental importance to a person’s enjoyment of respect for his or her personal data and family life’.²⁰

The United Nations and the international community, therefore, should also take into account the Court of Justice of the European Union (CJEU)’s decisions on this matter. A landmark decision came in Schrems v Data Protection Commissioner. ²¹ This is seen as one of the most important international privacy cases in recent history. The case was based on a complaint against Facebook brought to the Irish Data Protection Commissioner (IDPC). In the complaint, Schrems challenged the transfer of his data to the United States by Facebook in light of Facebook USA alleged involvement with the PRISM mass surveillance program.²² The Court of Justice of the European Union (CJEU) made the Safe Harbor arrangement of collection and data transfer between EU and US invalid. Schrems complaint was based on EU data protection law, which does not allow data transfers to non-EU countries, unless the company transferring and storing the data can guarantee adequate protection. The Court found that there was not the adequate protection needed in line with the EU data protection law and deemed that the Safe Harbor agreement ‘must be declared invalid’.²³ The Court also expressed that:

legislation permitting the public authorities to have access on a generalized basis to the content of electronic communications must be regarded as compromising the essence of the fundamental rights guaranteed by Article 7 of the Charter of Fundamental Rights of the European Union.²⁴

2.1. Is there a right to obscurity in the digital age?

Privacy is an essential human need and an essential fundamental human right. The difficulty comes that the term privacy itself can be an abstract concept which at times is difficulty to define but all humans need the knowledge to know that elements of their private lives will be private and kept from others.

With the rise of new technologies, it is difficult to know where this fundamental right to privacy extends or even exists. With the internet and social media, it has become almost impossible to protect these fundamental rights and almost impossible for an individual to become invis...

Table of contents

• Cover
• Half Title Page
• Title Page
• Copyright Page
• Contents
• Citation Information
• Notes on Contributors
• Introduction
• 1 International law, surveillance and the protection of privacy
• 2 The Right to Privacy in the 21st Century and the European Court of Human Rights’ Case Law
• 3 Informational privacy post GDPR – end of the road or the start of a long journey?
• 4 Playing catch up – privacy regimes in South Asia
• 5 The long arm of GDPR in Africa: reflection on data privacy law reform and practice in Mauritius
• 6 From privacy to data protection: the road ahead for the Inter-American System of human rights
• Index