RES/28/16 The right to privacy in the digital age

GE.15-06878 (E)



Human Rights Council Twenty-eighth session

Agenda item 3

Promotion and protection of all human rights, civil,

political, economic, social and cultural rights,

including the right to development

Resolution adopted by the Human Rights Council

28/16. The right to privacy in the digital age

The Human Rights Council,

Guided by the purposes and principles of the Charter of the United Nations,

Reaffirming the human rights and fundamental freedoms enshrined in the Universal

Declaration of Human Rights and relevant international human rights treaties, including the

International Covenant on Civil and Political Rights and the International Covenant on

Economic, Social and Cultural Rights,

Recalling the universality, indivisibility, interdependence and interrelatedness of all

human rights and fundamental freedoms,

Reaffirming the Vienna Declaration and Programme of Action,

Recalling its resolutions 5/1, on institution-building of the Human Rights Council,

and 5/2, on the Code of Conduct for Special Procedures Mandate Holders of the Council, of

18 June 2007, and stressing that the mandate holder shall discharge his or her duties in

accordance with those resolutions and the annexes thereto,

Recalling also General Assembly resolutions 68/167 of 18 December 2013 and

69/166 of 18 December 2014 on the right to privacy in the digital age, and Human Rights

Council decision 25/117 of 27 March 2014 on the panel on the right to privacy in the digital

age,

Recalling further its resolutions 20/8 of 5 July 2012 and 26/13 of 26 June 2014 on

the promotion, protection and enjoyment of human rights on the Internet,

Welcoming the work of the Office of the United Nations High Commissioner for

Human Rights on the right to privacy in the digital age, noting with interest its report

thereon,1 and recalling the panel discussion on the right to privacy in the digital age held

during the twenty-seventh session of the Human Rights Council,2

Taking note of the report of the Special Rapporteur on the promotion and protection

of human rights and fundamental freedoms while countering terrorism3 and the report of the

Special Rapporteur on the promotion and protection of the right to freedom of opinion and

expression,4

Noting with appreciation general comment No. 16 of the Human Rights Committee

on the right to respect of privacy, family, home and correspondence, and protection of

honour and reputation,5 while also noting the vast technological leaps that have taken place

since its adoption,

Recalling that the General Assembly in its resolution 69/166 encouraged the Human

Rights Council to remain actively seized of the debate on the right to privacy in the digital

age, with the purpose of identifying and clarifying principles, standards and best practices

regarding the promotion and protection of the right to privacy, and to consider the

possibility of establishing a special procedure to that end,

Recognizing the need to further discuss and analyse, on the basis of international

human rights law, issues relating to the promotion and protection of the right to privacy in

the digital age, procedural safeguards, effective domestic oversight and remedies, the

impact of surveillance on the right to privacy and other human rights, as well as the need to

examine the principles of non-arbitrariness and lawfulness, and the relevance of necessity

and proportionality assessments in relation to surveillance practices,

Reaffirming the human right to privacy, according to which no one shall be

subjected to arbitrary or unlawful interference with his or her privacy, family, home or

correspondence, and the right to the protection of the law against such interference, and

recognizing that the exercise of the right to privacy is important for the realization of the

right to freedom of expression and to hold opinions without interference and the right to

freedom of peaceful assembly and association, and is one of the foundations of a

democratic society,

Noting that the rapid pace of technological development enables individuals all over

the world to use new information and communications technology and at the same time

enhances the capacity of governments, companies and individuals to undertake

surveillance, interception and data collection, which may violate or abuse human rights, in

particular the right to privacy, as set out in article 12 of the Universal Declaration of Human

Rights and article 17 of the International Covenant on Civil and Political Rights, and is

therefore an issue of increasing concern,

Noting also that, while metadata can provide benefits, certain types of metadata,

when aggregated, can reveal personal information and can give an insight into an

individual’s behaviour, social relationships, private preferences and identity,

Emphasizing that States must respect international human rights obligations

regarding the right to privacy when they intercept digital communications of individuals

1 A/HRC/27/37.

2 See A/HRC/28/39.

3 A/69/397.

4 A/HRC/23/40 and Corr.1.

5 Official Records of the General Assembly, Forty-third Session, Supplement No. 40 (A/43/40),

annex VI.

and/or collect personal data and when they require disclosure of personal data from third

parties, including private companies,

Recalling that business enterprises have a responsibility to respect human rights as

set out in the Guiding Principles on Business and Human Rights: Implementing the United

Nations “Protect, Respect and Remedy” Framework,A/HRC/17/31, annex.

Deeply concerned 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,

Noting with deep concern that, in many countries, persons and organizations

engaged in promoting and defending human rights and fundamental freedoms frequently

face threats and harassment and suffer insecurity as well as unlawful or arbitrary

interference with their right to privacy as a result of their activities,

Noting 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,

Noting also in that respect that the prevention and suppression of terrorism is a

public interest of great importance, while reaffirming that States must ensure that any

measures taken to combat terrorism are in compliance with their obligations under

international law, in particular international human rights, refugee and humanitarian law,

1. Reaffirms the right to privacy, according to which no one shall be subjected

to arbitrary or unlawful interference with his or her privacy, family, home or

correspondence, and the right to the protection of the law against such interference, as set

out in article 12 of the Universal Declaration of Human Rights and article 17 of the

International Covenant on Civil and Political Rights;

2. Recognizes the global and open nature of the Internet and the rapid

advancement in information and communications technology as a driving force in

accelerating progress towards development in its various forms;

3. Affirms that the same rights that people have offline must also be protected

online, including the right to privacy;

4. Decides to appoint, for a period of three years, a special rapporteur on the

right to privacy, whose tasks will include:

(a) To gather relevant information, including on international and national

frameworks, national practices and experience, to study trends, developments and

challenges in relation to the right to privacy and to make recommendations to ensure its

promotion and protection, including in connection with the challenges arising from new

technologies;

(b) To seek, receive and respond to information, while avoiding duplication,

from States, the United Nations and its agencies, programmes and funds, regional human

rights mechanisms, national human rights institutions, civil society organizations, the

private sector, including business enterprises, and any other relevant stakeholders or parties;

(c) To identify possible obstacles to the promotion and protection of the right to

privacy, to identify, exchange and promote principles and best practices at the national,

regional and international levels, and to submit proposals and recommendations to the

Human Rights Council in that regard, including with a view to particular challenges arising

in the digital age;

(d) To participate in and contribute to relevant international conferences and

events with the aim of promoting a systematic and coherent approach on issues pertaining

to the mandate;

(e) To raise awareness concerning the importance of promoting and protecting

the right to privacy, including with a view to particular challenges arising in the digital age,

as well as concerning the importance of providing individuals whose right to privacy has

been violated with access to effective remedy, consistent with international human rights

obligations;

(f) To integrate a gender perspective throughout the work of the mandate;

(g) To report on alleged violations, wherever they may occur, of the right to

privacy, as set out in article 12 of the Universal Declaration of Human Rights and article 17

of the International Covenant on Civil and Political Rights, including in connection with the

challenges arising from new technologies, and to draw the attention of the Council and the

United Nations High Commissioner for Human Rights to situations of particularly serious

concern;

(h) To submit an annual report to the Human Rights Council and to the General

Assembly, starting at the thirty-first session and the seventy-first session respectively;

5. Invites the Special Rapporteur to include in the first report considerations that

the mandate holder finds relevant to address the right to privacy in the digital age;

6. Calls upon all States to cooperate fully with and to assist the Special

Rapporteur in the performance of the mandate, including by providing all necessary

information requested by him or her, to respond promptly to his or her urgent appeals and

other communications, to consider favourably the mandate holder’s requests to visit their

countries and to consider implementing the recommendations made by the mandate holder

in his or her reports;

7. Encourages all relevant stakeholders, including the United Nations and its

agencies, programmes and funds, regional human rights mechanisms, national human rights

institutions, civil society and the private sector to cooperate fully with the Special

Rapporteur to enable the mandate holder to fulfil the mandate;

8. Requests the Secretary-General and the High Commissioner to provide the

Special Rapporteur with all the human and financial resources necessary for the effective

fulfilment of the mandate;

9. Decides to continue its consideration of the matter under the same agenda

item.

56th meeting

26 March 2015

[Adopted without a vote.]