On 18-19 February, an expert workshop was organized by the Office of the High Commissioner for Human Rights in Geneva with the purpose of identifying and clarifying principles, standards, and best practices regarding the promotion and protection of the right to privacy in the digital age, including the responsibility of business enterprises in this regard.
The event included several sessions discussing some of the most prominent challenges, practices, and policies concerning the protection and promotion of the right to privacy in the digital age. This review mentions some of the most notable issues.
Identifying the available legal framework and the need to consider further guidance and interpretation, including the role of the ICCPR. In this regard, Joe Cannataci, UN Special Rapporteur on the Right to Privacy, emphasized the importance of a comprehensive legal framework in protecting privacy online. Such a comprehensive legal framework should include both safeguards (such as clear laws, proportionality, and necessity) and remedies. Convention 108 was mentioned many times in this regard as a common or acceptable standard today, and the lack of relevant alternatives was noted (Sophie Kwasny, Head of the Data Protection Unit, Council of Europe and Cannataci elaborated on this issue).
The issue of corporate responsibility, regulation of private companies, and remedies was also discussed at length. In particular, Anita Ramasastry, Chair of the UN Working Group on Business and Human Rights, mentioned that one of the current issues under this debate is the responsibility of companies not only regarding to their business activity and operational duties, but regarding their support for legislation, cross border surveillance, and whether or how they apply the Principles in this setting. Other participants addressed the issue of the applicability and adequacy of the UN Guiding Principles. It was pointed out that in recent years there appears to have been a greater focus on the role of private companies in the UN discourse on privacy. For example, the GA resolution on Privacy from 2014 added significant provisions addressing the role of companies. It is important that stakeholders continue to address concerns regarding both state and companies, particularly regarding the implication of companies in surveillance and censorship. The lack of accountability processes for companies that collect, process, and provide governments with users’ information highlights the lack of remedies in this regard, for example in terms of transparency.
In a different sphere, the tendency of private companies to decide which information they provide to governments and which they do not highlights the lack of a clear framework, vagueness and gaps in regulation between different national jurisdictions. This aspect was emphasized by representatives of private companies, who mentioned such aspects as governments pushing for the removal of encryption and the complex role of private companies. For example, Gail Kent, global security expert, Facebook UK, and Mike Silber, Liquid Telecom, both emphasized the lack of international human rights guidelines on surveillance.
On the issue of encryption, some participants opined that “encryption is under threat,” and that it is important to ensure that encryption remains a viable protection of privacy when the technology itself does not allow for limited interference. David Kaye, UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, also emphasized that anonymity is under threat as a concept, in particular when it comes to the protection of journalists and their sources, which leads to a threat to freedom of expression. Many commentators raised the issue of targeting human rights defenders through the digital sphere and the various digital risks this entails.
Other issues of concerns in this regard included chilling effect laws and new forms of surveillance such as social media intelligence; technologies that allows companies or governments to monitor social media networking science; surveillance of judges, human rights defenders, etc. and the threat this poises to democracy. Concerns about the implications that surveillance has on human rights infringements other than privacy (such as torture) as a result of surveillance were also noted.
On privacy and identity, Malavika Jayaram, Executive Director, Digital Asia Hub, Hong Kong elaborated on the issue of how AI can improve life but may be ethically questionable and have new harms and offences (for example, so-called “algorithm discrimination.”)
Finally, the workshop seems to emphasize the need for further thematic focus on protection of human rights in the digital sphere. This entails developing relevant international standards and endorsing public discussion around privacy that will include all relevant stakeholders.
The Geneva Platform
In 2018, the Geneva Academy of International Humanitarian Law and Human Rights launched the Geneva Human Rights Platform. This new platform aims to provide space for discussion and exchange of ideas on current and emerging human rights issues, backed by academic research.
On February 20, 2018, the Platform held an informal brainstorming meeting. The aim of this discussion was to bring together different stakeholders, diplomats, academics, UN officials, and NGOs in order to discuss relevant issues in the field of human rights in the digital age. The general approach is to connect between all the players and create a network. The Platform intends to identify the main challenges on this issue and enhance the debates on this area.
