Centre for Internet & Society

The United Nations adopted the resolution on the right to privacy recently. It recognised privacy as a human right, integral to the right to free expression, and also declared that mass surveillance could have negative impacts on human rights.

On November 26, 2013, the United Nations adopted a non-binding resolution on The Right to Privacy in the Digital Age. The resolution was drafted by Brazil and Germany and expressed concern over the negative impact of surveillance and interception on the exercise of human rights. The resolution was controversial as countries such as the US, the UK, and Canada opposed language that spoke to the right to privacy extending equally to citizens and non-citizens of a country. The resolution welcomed the report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression that examined the implications of surveillance of communications on the human rights of privacy and freedom of expression.

The resolution made a number of important statements that India, as a member of the United Nations, and as a country in the process of implementing a number of surveillance projects, like the Central Monitoring System, should take cognizance of, including in short:

  1. Privacy is a human right: Privacy is a human right according to which no one should be subjected to arbitrary or unlawful interference with his or her privacy, family, home, or correspondence.
  2. Privacy is integral to the right to free expression: an integral component in recognizing the right to freedom of expression.
  3. Unlawful and arbitrary surveillance violates the right to privacy and freedom of expression: Unlawful and/or arbitrary surveillance, interception, and collection of personal data are intrusive acts that violate the right to privacy and freedom of expression.
  4. Exceptions to privacy and freedom of expression should be in compliance with human rights law: Public security is a potential exception justifying collection and protection of information, but States must ensure that this is done fully in compliance with international human rights law.
  5. Mass surveillance may have negative implications for human rights: Domestic and extraterritorial surveillance, interception, and the collection of personal data on a mass scale may have a negative impact on individual human rights.
  6. Equal protection for online and offline privacy: The right to privacy must be equally protected online and offline.

The resolution further called upon states to:

  1. Respect and protect the right to privacy, particularly in the context of digital communications.
  2. To ensure that relevant legislation is in compliance with international human rights law
  3. To review national procedures and practices around surveillance to ensure full and effective implementation of obligations under international human rights law.
  4. To establish and maintain effective domestic oversight mechanisms around domestic surveillance capable of ensuring transparency and accountability.

The resolution finally calls upon the UN High Commissioner for Human Rights to present a report with views and recommendations on the protection and promotion of the right to privacy in the context of surveillance to the Human Rights Council at its twenty-seventh session and to the General Assembly at its sixty-ninth session and decides to examine “Human rights questions, including alternative approaches for improving the effective enjoyment of human rights and fundamental freedoms”.

The UN Resolution on the Right to Privacy in the Digital Age is a welcome step towards an international recognition of privacy as a human right in the context of communications and extra territorial surveillance. The Centre for Internet and Society encourages the Government of India to, as called upon in the Resolution, to review national procedures and practices around surveillance to ensure full and effective implementation of obligations under international human rights law.

Prior to the UN Resolution on “The Right to Privacy in the Digital Age”, a group of international NGO’s developed the Necessary and Proportionate principles that seek to form a backbone for a response to mass surveillance and provide a framework for governments to assess if domestic surveillance regimes are in compliance with international Human Rights Law. CIS has contributed to the process of developing these principles.  The principles include legality, legitimate aim, necessity, adequacy, proportionality, competent judicial authority, due process, user notification, transparency, public oversight, integrity of communications and systems, safeguards for international cooperation, and safeguards against illegitimate access.  A petition to sign onto the principles and demand an end to mass surveillance is currently underway.

Both the Government of India and public of India should take into consideration the UN Resolution and the necessary and proportionate principles to reflect on how India’s surveillance regime and practices can be brought in line with international human rights law and understand where the balance is drawn for necessary and proportionate surveillance, specific to the Indian context.


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