The protection against unlawful interference with one’s privacy, home, correspondence and reputation has been recognized as a fundamental human right under Article 12 of the Universal Declaration of Human Rights and Article 17 of the International Covenant on Civil and Political Rights. In 1967, Alan Westin surveyed animal behavior to deduct that a need for privacy was not restricted to just human beings.<1>In humans, the notion of privacy predates even modernity. However, as an innate and elemental need of human beings, the contours of privacy law are perhaps as murky as they were a few decades ago. This can be attributed, in part, to the fact that evolving technology adds newer and more complex dimensions to privacy of individuals.At this juncture, the United Nations Human Rights Council’s (UNHRC) resolution to appoint a Special Rapporteur on Privacy is a welcome change.<2>
On July 3 the UNHRC named Professor Joseph Cannataci of Malta as the new Special Rapporteur for a term of three years. Cannataci, superseded the first ranked candidate for the job, Katrin Nyman-Metcalf of Estonia due to concerns that she would not be critical enough of the United States’ surveillance practices.<3>This is reflective of one of the biggest expectations from the Special Rapporteur: To address international concerns regarding mass surveillance over the internet. Perhaps, the most important contribution that the Special Rapporteur on Privacy can make is by developing detailed international privacy norms that will govern the interactions between states, individuals and corporations. His work will also have lasting impact on freedom of expression, censorship, data protection and cyber security.
Cannataci’s appointment comes at a time when the UN seems to be significantly focusing on issues of privacy and freedom on the internet. On June 30, 2015 the UNHRC released a report titled “The right to privacy in the digital age.”<4> The report highlighted privacy violations caused by extrapolation of big data by corporations and interception of communication by governments. It also reiterated the triumvirate of legality, necessity and proportionality while dealing with personal information. The 29th Session of the Human Rights Council saw multiple bodies address rights and safeguards available to internet users. The Special Rapporteur on Violence Against Women submitted a report detailing the harassment caused to women by publication of intimate personal information without their consent. A section of the addendum to the report of the Working Group on the Issue of Human Rights and Transnational Corporations also focused on privacy. But perhaps the most significant input was the report on encryption and anonymity submitted by David Kaye, the Special Rapporteur on Freedom of Opinion and Expression. Kaye concluded that laws that impose blanket prohibitions on encryption and anonymity are neither necessary nor proportionate. He urged states to refrain from imposing such conditions. He also implored state governments from compromising the integrity of information systems by installing backdoors and weak encryption systems in the interest of national security. He was also of the opinion that identification of users by way of SIM card registrations should not be made a condition precedent for availing online services.
On assuming office, Cannataci will need to approach issues relating to privacy from a holistic perspective. He will be expected to identify violations of people’s informational and locational privacy, threats to their bodily privacy and the privacy of their thoughts and association. In the process he will need to work in close cooperation with various governmental agencies as well as proactively engage with non-governmental organisations. Fortunately, in his nearly 30 years of experience in the field, Prof. Cannataci has worked in various capacities with governments, academia and civil society. With extensive experience in the field of data protection, it is reasonable to expect that his first order of business will be towards harmonizing and clarifying international rules on collection, use and storage of personal data by governments and corporations.
When it comes to protecting personal information, Cannataci favours an all-encompassing ‘law of personality’ that protects not just a person’s privacy rights but her rights over commercial exploitation of her image and information.<5>In this regard, he seems to adopt the conception of informational privacy proposed by Charles Fried and Helen Nissenbaum. Fried understands privacy not simply as “an absence of information about us in the minds of others, rather
Cannataci’s dislike of misappropriation of personal information is apparent in his questioning of the proportionality of laws that allow collection of internet data en masse.<9> He has also seemingly hailed<10> decisions by the German constitutional court that prevented governments from compromising the integrity of computer systems to collect information<11> and blocked parts of the EU Data Collection Directive that allowed unhindered collection of communications metadata.<12> On the issue of state surveillance, Cannataci also favours the requirement of a court order for accessing and processing personal data of citizens.<13> This is a significant departure from the regressive practices followed by the United Kingdom, India and several other former colonies of the UK that still employ an administrative authorization model for surveillance.
Prof. Cannataci seems to represent an inclination towards a progressive and penumbral right to privacy. Such a singular right when ultimately conceived will take into account considerations relating to chilling effects on free speech as well as developments of an individual’s personality. Arriving at an international consensus on such a right is no easy task. One of the reasons for this is the discursive development that the right to privacy has undergone in the last two centuries. Different countries have had different priorities with regards to the development of the right. However, the creation of a specialized expert to clarify the right to privacy at an international level is cause for much optimism. Privacy has never been subject to as much debate and scrutiny as it is now. With international cooperation and engagement with all important stakeholders, the right to privacy may finally find the etymological delineation that has long proven elusive.
The author is a Junior Fellow at ORFThe views expressed above belong to the author(s). ORF research and analyses now available on Telegram! Click here to access our curated content — blogs, longforms and interviews.
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