Data Protection Privacy in the Digital Age: the UN General Assembly Resolution Sophie Kwasny, 16 October th International Conference, Mauritius

Data Protection UN actions Recent : Report of the UN High Commissioner for Human Rights (Navi Pillay) General Assembly Resolution 68/167 on the right to privacy in the digital age Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression (Frank La Rue)

Data Protection Possible paths (1) Special Rapporteur Establishment by the UN Human Rights Council of a new mandate for a Special Rapporteur on the right to privacy ? Joint Initiative Special Rapporteur on the right to freedom of opinion and expression and Special Rapporteur on counter-terrorism joint initiative ?

Data Protection Possible paths (2) Optional Protocol to the ICCPR on the right to privacy in order to affirm and further elaborate on the right to privacy ? New General Comment General Comment No. 16 on Article 17, adopted by the Human Rights Committee on 8 April 1988

Data Protection General Comment 16 “article 17 deals with protection against both unlawful and arbitrary interference” “The term “unlawful” means that no interference can take place except in cases envisaged by the law.” “the expression “arbitrary interference” can also extend to interference provided for under the law.” “A decision [of] interference must be made only by the authority designated under the law, and on a case-by- case basis.”

Data Protection Council of Europe ≠ EU

Data Protection Council of Europe Instruments European Convention on Human Rights of 1950: 47 Signatories Data Protection Convention (« 108 ») of 1981 Declaration on Risks to Fundamental Rights stemming from Digital tracking and other Surveillance Technologies (11 June 2013)

Data Protection ECHR and surveillance Reports on mass surveillance suggest in particular an infringement of the right to respect for private life (Article 8 ECHR). However, this also has an impact on other rights, including: Article 6 – Right to a fair trial; Article 10 – Freedom of expression; Article 11 – Freedom of assembly and association; Article 13 – Right to an effective remedy.

Data Protection ECHR and surveillance The interception of communications by State bodies, including national security services, constitutes an “interference” with the right to private and family life, home and correspondence guaranteed by Article 8 of the ECHR. Such an interference must meet a number of conditions as reflected in the case-law of the European Court of Human Rights.

Data Protection Data protection : an enabling right ECHR Article 1 – Obligation to respect human rights Article 8 – Right to private life Article 9 – Freedom of thought, conscience and religion Article 10 – Freedom of expression Article 11 – Freedom of assembly and association

Data Protection Convention years old: 46 parties (including Uruguay) + observers (US, Canada, Australia and non-state actors) Pending : Morocco New request : Mauritius SCOPE (article 3) private and public sector – no reservations possible but declarations

Data Protection Convention 108 Art 9 : Exceptions and Restrictions No exception […] shall be allowed except within the limits defined in this article. Derogation […] shall be allowed when […] provided for by the law and constitutes a necessary measure in a democratic society in the interests of […] protecting State security, public safety, the monetary interests of the State or the suppression of criminal offences […]

Data Protection The 1990 Resolution “Guidelines for the regulation of computerized personal data files” -Requests Governments to take into account those guidelines in their legislation and administrative regulations; -Requests governmental, intergovernmental and non-governmental organizations to respect those guidelines in carrying out the activities within their field of competence.

Data Protection The 1990 Resolution Principles concerning the minimum guarantees Lawfulness and fairness of the processing Accuracy of data Purpose-specification Right of access Non-discrimination Exceptions Security Authority supervising observance Transborder data flows

Data Protection Resolution of the 36 th Conference Resolution on the privacy in the digital age. ‘readiness to participate in the multi- stakeholder dialogue’ ‘calls upon members of the International Conference to contribute to ensuring compliance of mass surveillance program with the relevant applicable binding instruments […]’

Data Protection Thank you for your attention