A Human Right to Informational Self-determination: What it is and why it matters for Digital Human Rights

On 9 October 2025, the Inter-American Commission on Human Rights (‘Inter-American Commission’) published a thematic report titled “The Impact of Digital Surveillance on Freedom of Expression in the Americas”. Among other things, the report called on member states to give effect to a new human right – the “right to informational self-determination”. The report comes two years after the Inter-American Court of Human Rights (‘Inter-American Court’) recognized the right to informational self-determination as an autonomous right within the Inter-American system. It did so in a landmark ruling – the case of Members of the José Alvear Restrepo Lawyers’ Collective v Colombia (‘CAJAR case’) – handed down on 18 October 2023.

As we elaborate below, the Inter-American Court developed the right to informational self-determination as a right deriving from other rights enumerated in the American Convention on Human Rights: The right to privacy (Article 11), the right to access information and freedom of expression (Article 13) and the right to judicial protection (Article 25). In recognizing a new right, the judgment marks an inflection point which changes the way in which institutions in the Inter-American human rights system understand how surveillance affects human rights, moving beyond the traditional focus on privacy and freedom of expression and opting instead to develop a new digital human right.

The recognition of the right to informational self-determination by two major human rights bodies in America, alongside its acknowledgment by the European Court of Human Rights, marks a significant evolution in regional human rights jurisprudence and a promising development for digital human rights globally. This contribution first examines the normative content of the right to informational self-determination, explores why recognition of new digital human rights matters, and then highlights its doctrinal and practical challenges.

The right to informational self-determination and its normative contents 

Ontologically, the right to informational self-determination refers to an individual’s capacity to determine, in principle, when, how, and to what extent their personal data may be disclosed, accessed, processed, and used by public or private actors (see here, here and here). In the digital surveillance context, where data collection is massive, constant, ubiquitous, and often opaque in nature, this right functions as a critical personal liberty and human dignity safeguard, designed to ensure that individuals retain meaningful control over their personal data (see here ¶177).

An early conceptualization of the right to informational self-determination can be traced back to Westin’s seminal work, where he defined privacy as “the claim of individuals (…) to determine for themselves when, how, and to what extent information about them is communicated to others”. The notion later gained formal judicial recognition in the famous 1983 Federal Census Act decision of the Federal Constitutional Court of Germany, which first articulated informational self-determination as an individual right grounded in personal autonomy and human dignity (see here, here and here).

Over time, this right has come to occupy a central place within European data protection law, fundamentally reshaping the contemporary understanding of privacy (see here, here and here). 

This evolution in European data protection law has (in)directly influenced other regional human rights systems, including the Inter-American system. This was acknowledged both in the CAJAR case majority decision itself (¶589) and in the Separate Opinion of Judge Rodrigo Mudrovitsch (¶78), who observed that “[t]he Court has recognized the right to informational self-determination in the CAJAR case, a decision whose deep roots lie in the landmark 1983 decision by the German Constitutional Court, where the concept was first coined”.

On substance, the CAJAR case helps us conceptualize the contours of the new digital human right to informational self-determination. The case involved allegations that Colombian intelligence spied on members of the José Alvear Restrepo Lawyers’ Collective (‘CAJAR’), gathering and misusing their personal information—some of which was reportedly shared with illegal armed groups (¶1). The Inter-American Court ruled that individuals whose data are held in public files must have their freedom of self-determination guaranteed, considering the following specific entitlements (¶ 585):

(i) the right to know what data are kept by public authorities, including their source, purpose, retention period, sharing practices and overall conditions of processing;

(ii) right to demand that their data be rectified, amended, or updated if the information is inaccurate, incomplete or out of date;

(iii) the right to demand that the data be destroyed, erased or suppressed if they were unlawfully collected or their retention no longer justified, provided this does not infringe other protected rights;

(iv) the right to object to data processing when it causes harm or is otherwise incompatible with applicable regulations; and

(v) the right to receive personal data in a structured, commonly used, machine-readable format and to request their transfer without undue interference.

Considering these entitlements, the Inter-American Court made an avant-garde holding by pronouncing that (¶ 586): 

The conjunction of these factors comprises an autonomous human right: the right to informational self-determination, recognized in various of the region’s legal systems and protected by the American Convention, especially under the rights set forth in Articles 11(the right to privacy) and 13 (freedom of expression), and as a dimension of judicial protection, a right guaranteed under Article 25 ( emphasis added).

This means that the right to informational self-determination derives not only from Article 11 of the American Convention, prohibiting arbitrary or abusive interference with private life and guaranteeing legal protection against such interference, but is also related to the freedom to seek, and receive  information under Article 13 , which the Court has interpreted as protecting the right to request access to State-held data and as imposing a corresponding positive obligation on public authorities to provide it. Additionally, the right to an effective remedy under Article 25 requires individuals to have simple, prompt, and effective recourse to protect their fundamental rights. 

The emphasis given by the Court to the inter-relations between informational self-determination and other human rights resembles the approach taken by the International Court of Justice towards the recognition of a new right to clean, healthy and sustainable environment in the recent Climate Change Advisory Opinion (¶393). 

Why does this normative development matter for digital human rights?

The growing recognition of a standalone right to informational self-determination is significant in a number of respects. First, it represents an attempt to empower individuals who are potential victims of unlawful digital surveillance. The extensive use of digital surveillance technologies poses a most serious threat to the right to privacy, but also to a host of other civil and political rights which safeguard personal liberty, human dignity and individual autonomy. The Court’s analysis in CAJAR demonstrates that, in view of potential abuse by states of the power to collect and retain personal information individuals must have effective means to resist such abuse by obtaining knowledge about the data held and the manner by which it was obtained, as well as by exercising effective control over it (requesting  updating, rectification or modification of data and, where possible, requesting deletion). In the absence of such empowering mechanisms, surveillance operations are likely to create a permanent state of rights violation (¶580). 

Second, it represents an acknowledgment of the threat posed by digital surveillance to foundational human rights principles – especially human dignity, individual autonomy and personal liberty. As the Court emphasized, the American Convention “contains a universal clause for the protection of human dignity, which places the individual as both subject and end of the legal, political and social order, and provides content to both the notion of individual autonomy and the principle that guarantees that all persons must be treated as equals” (¶567). According to the Court, personal autonomy encompasses “the possibility of every human being to self-determine and freely choose the options and circumstances that give meaning to their existence, according to their own choices and convictions” (¶¶569-70). Informational self-determination is seen by the Court as emanating from these foundational principles.

Third, the Court’s judgment implicitly suggests that reliance on existing human rights norms, for example the right to privacy, is inadequate to fully address the rapid evolution of digital technologies and their impact on the enjoyment of human rights in the digital age. Discussing the inadequacy of applying existing norms to the online realm, Dror-Shpoliansky and Shany argued elsewhere that “[t]his notion of inadequacy appears to support the development of new digital human rights, liberated from the shadow of offline human rights, since the latter are ill-equipped to afford effective protection of the full gamut of needs and interests of online users” (p. 1257). 

Indeed, the turn by the Court to a new digital human rights – a right to informational self-determination – allows us to situate the judgment within the analytical framework of the “Three Generations of Digital Human Rights” project. This project investigates the claims that the evolution of digital human rights proceeds in three stages: (i) the adaptation of offline rights to the online realm; (ii) the creation of new digital rights; and (iii) the introduction of rights and obligations for digital actors (see here, here and here). By alluding to a number of different human rights (¶589) and invoking human dignity, individual autonomy and personal liberty as the foundations for a right to self-determination (¶569), the Court appears to have accepted the proposition that an effective response to the growing threat posed by state surveillance in the digital age justifies the creation of a new digital human right, which will incorporate elements from the different normative sources it is built upon, and entail specific obligations regarding data protection. 

Challenges ahead

While developments in the Inter-American human rights system provide critical support for the development of a new digital human right to information self-determination, it is far from certain whether such a right would attain universal acceptance anytime soon. In fact, UN bodies have expressed so far reluctance to push in the direction of new digital human rights, preferring instead to operate inside a “normative equivalency” paradigm that strives to apply offline rights to online spaces (p. 1254). Such preference reflects concerns about “rights inflation”, but also a concern about the difficulties of generating consensus at this geopolitical moment. 

While such concerns certainly have merits, the approach by the Inter-American Court of constructing a new digital human right on the basis of existing offline rights is compelling in our eyes. It presents the introduction of new digital rights as a process that is evolutionary, not revolutionary, and as another stage in the long-honoured tradition of extrapolating specific human rights from more general ones (e.g., the right not to be subject to enforced disappearance).    

Still, it remains to be seen how the right to informational self-determination develops in a digital era dominated by AI technology and AI companies. Indeed, in his separate opinion, Judge Mudrovitsch expressed concerns in this regard, noting that the use of AI would further enhance the power of surveillance authorities, allowing them to access biometric data captured, for example, by facial recognition technology and genetic databases (¶106-107).  

Conclusion 

While the recognition of the right to informational self-determination by the Inter-American Court and Commission is a milestone worth celebrating in the designation of new digital rights, it is far from the end of the story. Other international human rights bodies should consider following suit by expressly giving legal effect to this emerging right. In this regard, the Inter-American Commission’s call for domestic implementation is particularly noteworthy ¶ 285(6). 

Furthermore, given the growing challenge posed by digital technologies and AI systems, serious consideration should be given to more comprehensive regulation, including the development of specific human rights norms, to ensure effective protection of individual rights in this complicated technological and institutional terrain. The right to informational self-determination needs, in other words, to be complemented by other new digital and AI human rights. The recent call by the High Commissioner for Human Rights to define rights for the digital age represents a right step in this direction.