UN General Assembly Adopts Resolution On Privacy And Surveillance

On 18 December, the United Nations General Assembly adopted by consensus Resolution A/RES/68/167, The right to privacy in the digital age (see page 139 of document A/68/456/Add.2). This Resolution was initially introduced by Brazil and Germany and was subsequently supported by other countries.

The genesis of this resolution is concern regarding the widely reported pervasive surveillance programs revealed by Edward Snowden. While the resolution in question does not directly condemn any particular practice, it can be understood to be criticising some of the practices that have been discussed in the press, in particular pervasive extraterritorial surveillance. While resolutions do not have the same legal effects as treaties, they can nevertheless be considered a form of  “soft law”, because they outline agreed positions on specific issues.

Significantly, the resolution calls on the UN High Commissioner for Human Rights to submit a report on the protection and promotion of the right to privacy in the context of domestic and extraterritorial surveillance and/or interception of digital communications and the collection of personal data, including on a mass scale. So the topic will surely be discussed again at the General Assembly.

The Resolution reaffirms existing human rights instruments and notes that technological developments enhance surveillance, interception and data collection capabilities, which may violate or abuse human rights, in particular the right to privacy. It reaffirms that right, recognising that it is important for the realisation of the right to freedom of expression and to hold opinions without interference, one of the foundations of a democratic society.

The importance of the full respect for the freedom to seek, receive and impart information is stressed, emphasising that unlawful or arbitrary surveillance as well as unlawful or arbitrary collection of personal data, as highly intrusive acts, violate the rights to privacy and to freedom of expression.

The Resolution notes that while concerns about public security may justify the gathering and protection of certain sensitive information, states must ensure full compliance with their obligations under international human rights law.

Deep concern is expressed at the negative impact that surveillance and/or interception of communications, including extraterritorial surveillance and/or interception of communications, as well as the collection of personal data, in particular when carried out on a mass scale, may have on the exercise and enjoyment of human rights.

The Resolution affirms that the same rights that people have offline must also be protected online, including the right to privacy. And it calls on States to respect the right to privacy; to take measures to put an end to violations of those rights; to review their procedures, practices and legislation regarding surveillance; and to establish or maintain independent, effective domestic oversight mechanisms.

As noted above, the UN High Commissioner for Human Rights is requested to submit a report on these matters.

Contributed by Richard Hill, an independent consultant based in Geneva, Switzerland.

[Note: this article is part of a new feature at Intellectual Property Watch: “Contributed Articles” – occasional editorial contributions by experts who are not affiliated with IP-Watch. This is part of an effort to bring you news on interesting issues we may not have the capacity to cover using our regular staff. These articles are factual to the best of our knowledge and are not intended to be opinion pieces, which would otherwise appear in the Inside Views column.]