1. Privacy in the Digital Age: the UN General Assembly Resolution
Sophie Kwasny, 16 October 2014
36th International Conference, Mauritius

2. 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)

3. 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 ?

4. 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

5. 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.”

6. Council of Europe ≠ EU

7. 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)

8. 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.

9. 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.

10. 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

11. Convention 108
33 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

12. 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 […]

13. 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.

14. 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

15. Resolution of the 36th 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 […]’

16. Thank you for your attention