Privacy is essential to autonomy and the protection of human dignity, serving as the foundation upon which many other human rights are built.
Privacy enables us to create boundaries and protect ourselves from unwarranted interference in our lives, allowing us to negotiate who we are and how we want to interact with the world around us.
Privacy protects us from arbitrary and unjustified use of power by states, companies and other actors. It lets us regulate what can be known about us and done to us, while protecting us from others who may wish to exert control.
Is privacy a human right?
Privacy is a fundamental human right. The right to privacy is articulated in all of the major international and regional human rights instruments. Over 130 countries have constitutional statements regarding the protection of privacy.
Under the European Convention on Human Rights, the right to privacy is, in effect, contained in Article 8, the right to respect for family and private life. It is important to know that it is also a “qualified” right. That means it is not absolute, and can be interfered with in certain limited situations, for example to protect national security or freedom of expression. However, any interference has to be necessary and proportionate.
An important element is the right to protection of personal data. While this can be inferred from the general right to privacy, some international and regional laws also set out a more specific right to protection of personal data. Over 100 countries now have some form of data protection law.
Why does the right to privacy matter now?
Despite international human rights law, it’s all too common that privacy is violated by states and companies. Technological developments have increased our capabilities to protect privacy, but technical capabilities now exist for surveillance and interference with our privacy too, without precedent.
Advancements in processing personal data (including the ever-increasing power to intercept, access, collect, store and analyse data; centralised DNA and biometric databases; and more sophisticated algorithms able to de-anonymise data) are outpacing existing, out-of-date legal protections. Meanwhile, the emergence of a fast-expanding global surveillance industry is enabling government agencies to interfere with the right to privacy, including by conducting mass surveillance.
Technological developments are coupled with a global discourse on security and counter- terrorism that treats the privacy of individuals as an impediment to the “fight against terrorism”, wrongly pitching privacy against security. This discourse has led to the adoption of laws that grant intelligence services extended powers, with little oversight.
State surveillance and misuse of personal data take many forms: mass interception of communications; indiscriminate data retention policies; locational surveillance, via CCTV, GPS and similar technology; mandatory registration of SIM cards, compulsory IDs, and biometric systems. Hacking, malware and other means of compromising the security of communication systems are likewise pursued with increasing success by security and intelligence agencies.
Increasingly, we’re not being informed about the monitoring we’re placed under; the way our personal data are collected, analysed and shared; nor given the opportunity to question these activities. In fact, civil society organisations sometimes face threats when researching state policies and practices or documenting violations of the right to privacy.
What can be done?
Thanks to the Snowden revelations in 2013 and the campaign by civil society organizations, however, the right to privacy is finally having its day in the sun. The UN General Assembly adopted two important resolutions, in 2013 and 2014, calling on states to ensure that their laws and policies on surveillance comply with their obligations to respect and protect the right to privacy, whether exercised online or offline.
And in 2015 the UN Human Rights Council, the main UN human rights body, created a Special Rapporteur on the Right to Privacy. The rapporteur will be essential in providing expert analysis of and guidance on the human rights framework applicable to the right to privacy, tacking key privacy challenges, in particular as they apply to new technologies; and identifying the measures necessary to respect and protect this fundamental human right.