A UN Special Rapporteur on Privacy – Why Now?

As the 28th ordinary session draws to a close this week, the UN Human Rights Council is expected to consider a proposal to create a new UN Special Rapporteur on the right to privacy. The draft resolution, spearheaded by Brazil and Germany and supported by a broad group of states, is the latest of a series of initiatives to bring the right to privacy firmly within the UN human rights agenda.

If established, the Special Rapporteur would provide much-needed leadership and guidance on developing an understanding of the scope and content on the right to privacy, as well as strengthening the monitoring of states and companies’ compliance with their responsibility to respect and protect the right to privacy in their laws, policies and practices. In the last two years, the UN General Assembly, the UN High Commissioner for Human Rights and existing special procedure mandate holders have all recognized the pressing need to provide continuous, systematic and authoritative guidance on the scope and content of the right to privacy, particularly in light of the challenges of modern communications.

The July 2014 report of the Office of the High Commissioner for Human Rights has identified some of the key legal and policies challenges facing states (and companies) in respecting and protecting the right to privacy, in the context of state surveillance and modern communication technologies. Similarly, the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression and the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism have all addressed some aspects of privacy in their reports. (See, for example, UN Special rapporteur on the promotion and protection of the right to freedom of opinion and expression, Report to the UN Human Rights Council, UN doc. A/HRC/23/40, 17 April 2013 and UN Special rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Report to the UN General Assembly, UN doc. A/69/397, 23 September 2014.)

These reports help identify some of the challenges to respect and protect the right to privacy. Significantly, they also point at the need for in-depth study of issues related to the effective protection of the right to privacy, as well as systematic monitoring and reporting, something that existing mandates centered on other themes cannot be expected to deliver. In fact, when presenting his report to the UN General Assembly in October 2014, the UN Special Rapporteur on counter-terrorism and human rights reaffirmed his support for the adoption by the Human Rights Council of a new special procedure mandate specifically addressing the right to privacy. (See Third Committee of the UN General Assembly, meeting of 23 October 2014).

In turn, the UN General Assembly, in its resolution on the right to privacy in the digital age (adopted by consensus on 18 December 2014), encouraged the Human Rights Council to consider the possibility of establishing a special procedure on the right to privacy.

Indeed, the creation of a Special Rapporteur on the right to privacy would be a logical, incremental step to the UN’s engagement on this issue, and it would enable the Council to play a leading role in strengthening the promotion and protection of the right to privacy.

A Special Rapporteur would increase the level of protection and promotion of the right to privacy, furthering common understandings and authoritative interpretation of the right to privacy and providing guidance to states and companies to support them in fulfilling their obligations and responsibilities to respect and protect the right to privacy. Crucially, a Special Rapporteur would report on alleged violations of the right to privacy wherever they may occur, raise concerns with relevant governments and other actors and make recommendations to help ensuring the right to privacy of individuals is respected and protected.

Within the UN system, a Special Rapporteur would provide much-needed intellectual leadership on privacy. It would fill an institutional gap, as no existing special procedures mandate explicitly covers privacy. A Special Rapporteur would enable the Human Rights Council to provide the necessary leadership in identifying and clarifying principles, standards and best practices on the right to privacy.

The development of modern surveillance technologies and the revelations of the surveillance practices of law enforcement and intelligence agencies have sparked debates in many States, prompting calls to reform national laws and policies to ensure they respect the right to privacy. Beyond digital surveillance, the capacity of states and companies to collect, store, analyse and share personal data continues to increase.

These would be among the issues the Special Rapporteur, if established, will be dealing with, providing authoritative guidance on the scope of the right to privacy. In fact, the mandate of the Special Rapporteur, as it is currently envisaged in the draft resolution tabled on 19 March 2015 (available here), would enable the mandate holder to cover the full range of issues related to the right to privacy, as enshrined in Article 12 of the Universal Declaration on Human Rights and Article 17 of the International Covenant on Civil and Political Rights.

The UN has over the past two years taken serious steps to address the protection of the right to privacy. The establishment of a Special Rapporteur would be one of the most significant developments to continue this momentum.