Protecting the Right to Privacy

:
A UN Special Rapporteur Mandate Is More Needed Than Ever
1. Background
At its 25th session, the UN Human Rights Council (HRC) adopted decision A/HRC/25/117, which convened a panel
discussion, to be held at its 27th session, on the promotion and protection of the right to privacy in the digital age in
the context of domestic and extraterritorial surveillance and/or the interception of digital communications and the
collection of personal data, including on a mass scale, also with a view to identifying challenges and best practices.
This initiative, launched by Brazil and Germany, was supported by a large, cross-regional group of states. The
panel discussion was held on 12 September 2014 with a wide variety of stakeholders and participants, reflecting
the multi-dimensional character of the issue. In parallel, UN General Assembly resolution 68/167 requested the UN
High Commissioner for Human Rights to submit a report on the promotion and protection of the right to privacy in
the digital age. The report makes a number of recommendations to states based on the actual “lack of adequate
national legislation and/of enforcement, weak procedural safeguards, and ineffective oversight, all of which have
contributed to a lack of accountability for arbitrary or unlawful interference in the right to privacy”. It also stresses
the fact that information relating to surveillance continue[d] to emerge. Last, the report discusses the role of business enterprises, which have the responsibility to respect human rights, including through exercising due diligence.
On 25 November 2014, the UN General Assembly, at its Third Committee, adopted resolution A/C.3/69/L.26/Rev.1,
which recalls the history of action taken by UN bodies in relation to the right to privacy, including at the HRC, States'
and private actors' obligations, the fact that “vast technological steps” have taken place in recent years, and con cerns that, “in many countries, persons and organizations engaged in promoting and defending human rights and
fundamental freedoms frequently face threats and harassment and suffer insecurity as well as unlawful or arbitrary
interference with their right to privacy as a result of their activities”. The resolution encourages the HRC to “remain
actively seized of the debate” and to “consider the possibility of establishing a [new] special procedure” on the right
to privacy.
The right to privacy, which is protected inter alia by the Universal Declaration of Human Rights (Article 12) and the
International Covenant on Civil and Political Rights, in its Article 17, 1 is a multi-dimensional right. It has been used
“in the context of claims both about over-intrusive government and about neglectful government. That is, it is used
both to keep the state out and to draw it in”, considering its two dimensions: protecting private life from unjustified
interference2 and insisting that state authorities take responsibility for protecting rights within the private sphere, as
abuses are also committed in this context. 3 Whereas the latter aspect is today well-recognized, including with
regard to children's and women's rights and to protection of the right to non-discrimination, the former aspect –
ensuring protection of privacy from arbitrary or unlawful interference – is being challenged and made increasingly
difficult by the development and expansion of digital and surveillance technologies, also in the context of the “fight
against terrorism” and its adverse impacts on human rights, at the national and international levels. As a concept,
the “fight against terrorism” is vague and broad. It bears the risk of turning into a never-ending, undefined “war on
terror” and can be used for discriminatory ends and unlawful profiling on the basis of racial, religious or national
origin – with surveillance a key mechanism. In some countries, it can also be used to harass and criminalize human
1

2

3

The UN Human Rights Committee has elaborated on Article 17 of the ICCPR in its General Comment no.16 on “Article 17: The
right to respect of privacy, family, home and correspondence, and protection of honour and reputation”.
Which means that the right to privacy may be lawfully and legitimately restricted under certain circumstances, in accordance
with the law and for the sake of specific, democratic interests and values (at a regional level, Article 8 of the European Con vention on Human Rights, as well as jurisprudence of the European Court of Human Rights, elaborate on these interests).
Susan Marks and Andrew Clapham, “Privacy”, in International Human Rights Lexicon, Oxford: Oxford University Press, 2005.

HRC 28 - FIDH Advocacy Note - The Right to Privacy

rights defenders. The recent terrorist attacks committed in Paris and various calls for enhanced surveillance of indi viduals who may pose a threat to national security should not divert attention from the need to better protect individuals' right to privacy from unjustified interference – one of the tenets of a democratic society.
2. Series of concerns
Following on several threads of activities and research, including litigation, that it has been carrying out, FIDH
wishes to highlight several concerns related to the protection of the right to privacy and its linkages with the rights to
freedom of opinion and expression and to freedom of association, and with the protection of human rights defenders and whistleblowers, which require further mobilization by the Human Rights Council:
(a) Mass surveillance, interception of communications, and collection and use of personal data on a mass
scale by state agencies:
In July 2013, FIDH and its member organization in France, the Ligue des Droits de l'Homme (LDH), filed a com plaint with the Public Prosecutor of the Tribunal de Grande Instance of Paris against “unknown person” in relation
to the facts revealed by Mr. Edward Snowden in the PRISM case. The complaint includes allegations of “fraudulent
access to an automated data processing system”, “collection of personal data by fraudulent means”, “wilful violation
of the intimacy of the private life” and the “use and conservation of recordings and documents obtained through
such means”.4 Furthermore, in December 2013, FIDH and its member organization in Belgium, LDH Belgique,
lodged a complaint before the First Instance Court in Brussels against unknown person on the basis of the
revelations by Mr. Snowden of U.S. agency NSA mass surveillance in the context of the PRISM program, for
“unauthorized access to an IT system”, “violating the secrecy of private communications and telecommunications”,
“collection, use and maintenance of personal data gathered by such means”, and “violating the secrecy of electronic correspondence”.5
FIDH also filed several complaints in Colombia, and one in Belgium, in relation to illegal surveillance; interception of
hundreds of thousands of communications; collection of personal data; threats to human rights defenders, NGOs,
journalists, judges, lawyers and trade-unionists; and homicide (in the Colombian state agency DAS – G3 case). It
contributed to the closing of the Colombian intelligence agency.
The aim of these complaints is to trigger the opening of judicial investigations into these cases, and to bring attention to the unacceptable intrusion into the private life of millions of individuals, which constitutes an attack on individual freedoms and a significant threat to the rule of law. FIDH also submitted facts relating to Mr. Snowden's case
to the attention of the UN Special Rapporteur on the right to freedom of opinion and expression through an indi vidual communication. In parallel, FIDH called for protection to be provided to whistleblowers and asylum to be granted
to Mr. Snowden.6
FIDH and its member organizations have also consistently warned about the dangers associated with the use (and
abuse) of the narrative of the “fight against terror” to restrict fundamental rights and freedoms, both at the national
and international levels. The issue of protecting human rights whilst countering terrorism is intertwined with the right
to privacy and challenges to its realization, including those arising from technologies.
(b) Use of surveillance techniques and technologies by business enterprises, and states' obligations to
adequately regulate their use and respond to abuses:
Research carried out in Latin America has allowed FIDH to identify a number of threats to the right to privacy of
human rights defenders, journalists, members of social movements and other civil society actors, posed by the activities of private actors such as business enterprises, sometimes in cahoots with elements of public intelligence
agencies. These activities range from interception of communications; surveillance of NGOs, lawyers or politicians
(as in the Business Track S.A.C. case in Peru); interception of communications of NGOs and officials; illegal access
to confidential documents (in the Andromade case in Colombia); to spying on workers and social movements, and
their infiltration (as in cases involving Vale and the Belo Monte consortium in Brazil 7). In some cases, companies
4
5
6
7

http://www.fidh.org/en/europe/france/fidh-and-ldh-file-a-complaint-for-infringement-of-personal-data-13648
http://www.fidh.org/en/europe/belgium/14333-belgium-fidh-and-ldh-take-prism-scandal-to-court
http://www.fidh.org/en/americas/usa/international-protection-for-whistleblowers-should-be-increased-13624
A report by FIDH, following a fact-finding mission to Brazil, is upcoming.

HRC 28 - FIDH Advocacy Note - The Right to Privacy

created their own intelligence services, or sub-contracted other firms to carry out illegal activities. In other cases,
companies established links with elements or former elements of state intelligence services, who provided them
with logistical and human assistance. In all cases, business enterprises failed to uphold their responsibility to
respect human rights, as per the UN Guiding Principles on Business and Human Rights or other standards. State
responses have been insufficient: oversight of state intelligence agencies by Parliaments has been weak, execu tives have not taken adequate disciplinary action towards the concerned civil servants, and judicial proceedings
have failed to provide the victims with effective remedies or to identify the persons responsible for ordering illegal
acts/chain of command.
The persons who have been targeted are human rights defenders, journalists, trade-union activists and other civil
society figures. The cases documented by FIDH and its partners show the expansion of surveillance activities
facilitated by the (illegal) use of digital means by business enterprises, the intertwining of the right to privacy and
freedom of expression, and the need for state authorities to adequately regulate surveillance and to respond to
abuses committed by private actors, sometimes acting with the assistance of elements of state intelligence agencies. In particular, penalties should be reinforced and judicial investigations and proceedings should be beefed up
so that those responsible for violations and abuses be punished.
(c) Export of surveillance technologies that are used for unlawful purposes
FIDH is also mobilized to address irresponsible sale and export of surveillance technologies that are being used unlawfully, in violation of fundamental human rights. FIDH calls into question the role and responsibility of companies
which sell such products and services. In November 2011 and May 2012, FIDH and LDH lodged complaints against
Amesys and Qosmos with the French judiciary. The two companies allegedly sold communications surveillance
equipment to the Libyan and Syrian governments that enabled these countries' intelligence services to refine their
instruments of repression against their own citizens. In both cases, judicial inquiries have been initiated and are
ongoing. These cases have already contributed to shed light on the importance of adequate regulatory frameworks:
there is a need for strengthening export control regimes and for authorities to tackle the issue of dual-use tech nologies (such as internet and intrusion technologies) with corresponding regulatory frameworks. 8
3. Recommendations to the Human Rights Council
(a) Scope of the debate
The ongoing debate around the right to privacy would be incomplete if it focused solely on mass surveillance by
state agencies, as in the PRISM case. The issue is broad and multi-dimensional. With the rapid development of
technologies allowing a range of actors to not only carry out surveillance per se, but also interception of digital
communications, data collection, and infiltration of civil society groups and actors (infringing on their rights), the
HRC should deal with the right to privacy in a holistic, comprehensive, and systematic manner.
The panel discussion which was held at HRC 27 had a wide focus. It covered, directly or indirectly, the promotion
and protection of the right to privacy; domestic and extraterritorial surveillance; interception of digital commu nications and collection of personal data, including on a mass scale; and identification of challenges and best practices. Given the human rights consequences of the (under-regulated) development and use of digital technologies,
the Human Rights Council remains the most relevant UN body to tackle the issue.
(b) Which follow-up mechanism?
The Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, some times in the context of joint statements and declarations with regional procedures related to freedom of expression,
the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, as well as the OHCHR have dealt with the issue of the right to privacy in parts of their respective
mandates.9 Yet, experience has shown that they have not been in a position, or capacity, to adequately and syste matically tackle the issue of the right to privacy.
8

9

See FIDH's position paper, Surveillance Technologies 'Made in Europe': Regulation Needed to Prevent Human Rights Abuses:
https://www.fidh.org/International-Federation-for-Human-Rights/globalisation-human-rights/business-and-human-rights/16563surveillance-technologies-made-in-europe-regulation-needed-to-prevent
See Annex – A sample of UN resolutions, reports and jurisprudence pertaining to the right to privacy.

HRC 28 - FIDH Advocacy Note - The Right to Privacy

FIDH believes that the creation of a new special procedure (i.e., in practice, a Special Rapporteur) on the
right to privacy would be the most appropriate means of advancing the promotion and protection of this right.
Sponsors of HRC decision A/HRC/25/117 and of the panel discussion held at HRC 27 should create, at the 28 th
session of the Council (HRC 28, March 2015), such a procedure, with as wide a mandate as possible (see below).
This would have several distinctive advantages:
(a) Institutionalization: The right to privacy as a human rights issue would be inscribed on the agenda and
program of work of the Human Rights Council, ensuring systematic attention, monitoring, reporting and follow-up,
as well as reactivity. Cross-fertilization would be sought through, for instance, clustered interactive dialogues with
other special procedures such as the Special Rapporteur on freedom of expression.
(b) Protection: A new mechanism dedicated to the right to privacy would strengthen the latter's protection
through monitoring the global and national situations; examining individual cases and communications; sending
communications and urgent appeals to governments; carrying out country visits and follow-up visits; assisting
states in reviewing legislation and carrying out legal reform; etc. A practice of reporting by states to the Council on
the right to privacy would emerge.
(c) Promotion, technical assistance: An expert mechanism would extend, and facilitate the extension of,
technical assistance to states through organizing trainings, workshops, seminars and consultations, making recommendations with regard to any area or issue which could adversely affect the enjoyment of the right to privacy by
all. It would help disseminate information and best practices at the state level and within the general public. It would
also keep the Council informed so that the latter can play its promotional role.
(d) Standard-setting: A new special procedure with permanent staff from the OHCHR would be best suited,
on the one hand, to identify, clarify and set international standards on the right to privacy and, on the other hand, to
react to emerging trends and developments and to underline their effects on the enjoyment on the right to privacy
(including through thematic reports). The mechanism would also play an important role with regard to setting standards of accountability for violations and abuses of the right to privacy.
(e) Visibility: Issues of surveillance are increasingly being discussed by the media and the general public. A
dedicated UN mechanism would enhance the visibility of UN work with regard to issues relating to the right to
privacy and would exemplify the role played by the Human Rights Council, as a subsidiary to the UN General
Assembly, in promoting and protecting this right. In a context in which individual freedoms might be further challenged by calls for enhanced security measures, the UN Special Rapporteur on the right to privacy would be able to
voice concerns from a human rights perspective and to recall the necessary protection of individual rights in a de mocratic society, as well as the balance that needs to be stricken between security and liberty (restrictions to individual freedoms being exceptional in nature).
(c) Which scope for its mandate?
The mandate of the new special procedure should be as wide as possible in order to allow its holder to tackle
in a holistic way all of the issues related to violations of the right to privacy in the digital age.
- The How: expansion and easier access to technologies that enable or facilitate mass surveillance (both
domestic and extraterritorial), the interception of communications by state and non-state actors, and personal data
collection, the legal tools that facilitate unnecessary, indiscriminate or disproportionate digital surveillance under the
pretext of the “war on terror”;
- The Who: safeguards against infringements on the right to privacy attributable to state intelligence agencies (and the correlated obligations of states to regulate and control the activities of public agencies as well as the
use of techniques and technologies, and to protect all victims, including by providing them with access to effective
remedies); use, sale and export of surveillance techniques and technologies by business enterprises;
- The Adverse effects of violations of the right to privacy, one of them being serious effects on the right to
freedom of opinion and expression.

HRC 28 - FIDH Advocacy Note - The Right to Privacy

ANNEX – A sample of UN resolutions, reports and jurisprudence pertaining to the right to privacy
Reports and statements by special procedures
Reports to the United Nations General Assembly:

Report of the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression to the General
Assembly, on the promotion and protection of the right to freedom of opinion and expression, 4 September 2013. A/68/362. Available at:
http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N13/464/76/PDF/N1346476.pdf?OpenElement.

Report of the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression to the General
Assembly, on the right to freedom of opinion and expression exercised through the internet, 10 August 2011, A/66/290. Available at:
http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N11/449/78/PDF/N1144978.pdf?OpenElement.

Reports to the United Nations Human Rights Council:

Report of the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression to the Human
Rights Council on the Implications of States’ surveillance of communications on the exercise of the human rights to privacy and to
freedom of opinion and expression, 17 April 2013. A/HRC/23/40. Available at: http://daccess-ddsny.un.org/doc/UNDOC/GEN/G13/133/03/PDF/G1313303.pdf?OpenElement

Report of the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression to the Human
Rights Council, on the protection of journalists and media freedom, 4 June 2012, A/HRC/20/17. Available at: http://daccess-ddsny.un.org/doc/UNDOC/GEN/G12/137/87/PDF/G1213787.pdf?OpenElement.

Report of the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression to the Human
Rights Council on key trends and challenges to the right of all individuals to seek, receive and impart information and ideas of all kinds
through the internet, 16 May 2011, A/HRC/17/27. Available at: http://daccess-ddsny.un.org/doc/UNDOC/GEN/G11/132/01/PDF/G1113201.pdf?OpenElement.

Summary of cases transmitted to Governments and replies received:

UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Summary of cases
transmitted to Governments between 20 March 2010 and 21 March 2011 and replies received until 13 May 2011, 27 May 2011,
A/HRC/17/27/Add.1. Available at: http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G11/135/41/PDF/G1113541.pdf?OpenElement.

UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Summary of cases
transmitted to Governments between 1 January 2009 and 19 March 2010 and replies received between 16 May 2009 and 14 May 2010,
1 June 2010, A/HRC/14/23/Add.1. Available at: http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G10/138/41/PDF/G1013841.pdf?
OpenElement.

Joint statements and declarations:

UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression and Inter-American
Commission on Human Rights Special Rapporteur for freedom of fxpression, Joint Declaration on Surveillance Programmes and their
impact on Freedom of Expression, 21 June 2013. Available at: http://www.oas.org/en/iachr/expression/showarticle.asp?artID=927&lID=1

UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, OSCE Representative for
freedom of the media, Organization of American States (OAS) Special Rapporteur on freedom of expression and African Commission on
Human and Peoples’ Rights (ACHPR) Special Rapporteur on freedom of expression and access to information, Joint Declaration on
Freedom of Expression and the internet, 1 June 2011. Available at: http://www.osce.org/fom/99558?download=true.

UN Special Rapporteur oon the promotion and protection of the right to freedom of opinion and expression, OSCE Representative for
freedom of the media, OAS Special Rapporteur on freedom of expression and ACHPR Special Rapporteur on freedom of expression
and access to information, Joint Declaration on Crimes Against Freedom of Expression, 2012. Available at:
http://www.osce.org/fom/99558?download=true.

HRC 28 - FIDH Advocacy Note - The Right to Privacy

UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, OSCE Representative for
freedom of the media, OAS Special Rapporteur on freedom of expression and ACHPR Special Rapporteur on freedom of expression
and access to anformation, Tenth Anniversary Joint Statement: Ten Key Challenges to Freedom of Expression in the Next Decade,
2010. Available at: http://www.osce.org/fom/99558?download=true.

UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression and IACHR Special
Rapporteur for freedom of expression, Joint Statement on Wikileaks, 21 December 2010. Available at:
http://www.oas.org/en/iachr/expression/showarticle.asp?artID=829.

OHCHR publications
Reports of the Office of the UN High Commissioner for Human Rights:

Report of the Office of the High Commissioner for Human Rights to the Human Rights Council, The Right to privacy in the digital age, 30
June 2014, A/HRC/27/37. Available at: http://www.ohchr.org/en/hrbodies/hrc/regularsessions/session27/documents/a.hrc.27.37_en.pdf.

Summary report of the OHCHR on the panel discussion on the promotion and protection of the right to privacy in the digital age in the
context of domestic and extraterritorial surveillance and/or the interception of digital communications and the collection of personal data,
including on a mass scale, A/HRC/28/39. Available at
http://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session28/Documents/A_HRC_28_39_ENG.doc.

Statements of the High Commissioner for Human Rights:

Opening remarks by Ms Navi Pillay, United Nations High Commissioner for Human Rights, to the Side-event at the 24 th session of the
UN Human Rights Council How to safeguard the right to privacy in the digital age?, 20 September 2013. Available at:
http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=13758&LangID=E.

Opening remarks by Ms Navi Pillay, UN High Commissioner for Human Rights, to the Expert Seminar The right to privacy in the digital
age, 24 February 2014. Available at: http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=14276&LangID=E.

UN General Assembly resolutions

Resolution adopted by the General Assembly on 18 December 2013 on the right to privacy in the digital age, 21 January 2014,
A/RES/68/167. Available at: http://www.un.org/ga/search/view_doc.asp?symbol=A/RES/68/167.

Resolution adopted by the General Assembly on 25 November 2014 on the right to privacy in the digital age, A/C.3/69/L.26/Rev.1.
Available at http://www.un.org/ga/search/view_doc.asp?symbol=A/C.3/69/L.26/Rev.1.

Conclusions by United Nations treaty bodies
Human Rights Committee

Concluding observations on the fourth periodic review of the United States of America, 23 April 2014, CCPR/C/USA/CO/4. Available at:
http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CCPR%2fC%2fUSA%2fCO%2f4&Lang=en.

Concluding observations on Colombia, 4 August 2010, CCPR/C/COL/CO/6, para 16. Available at:
http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CCPR%2fC%2fCOL%2fCO%2f6&Lang=en.

HRC 28 - FIDH Advocacy Note - The Right to Privacy