Go v e r n a n c e f o r i n c l u s i o n : P a r t i c i p a t i o n a n d d i a l o g u e Commonwealth Governance Handbook 2014/15 80 to share users’ private information with law enforcement must be interpreted narrowly in order to uphold rights to privacy (Dunn and Brown, 2014, pp. 138–141). More work is needed to support discussions at national levels about the powers that should be granted to law enforcement agencies in ways that uphold and secure citizens fundamental human rights, including the right to privacy (ibid, p. 141). Yet there are very few resources for policy-makers in this area. For example, there is little best practice guidance on internet-related regulation, and still less on how to take account of human rights in relation to the internet. Commonwealth countries that participate in the global Internet Governance Forum2 or that participate in national internet governance forums have much better access to best practice and can share issues and test ideas alongside other stakeholders including civil society, the technical community, academics and the private sector. Too often in the last five years, approaches to internet-related policy-making have been exclusively from the entry points of cybercrime and national security, with the result that multi-lateral agreements on information sharing, counter terrorism measures and even trade-related issues have been at the forefront of shaping responses to law and technology. Human rights, including the rights to freedom of expression and privacy, have not been adequately considered. It is incredible, for example, that it was not until 2012 that the United Nations Human Rights Council passed its first-ever internet-related human rights resolution. The resolution, supported by 80 states, affirmed the simple concept that ‘the same human rights people have offline must also be protected online’ (UNGA, 2012). Right to privacy In June 2014, however, the out-going High Commissioner for Human Rights, Navi Pillay, released a ground-breaking report on the right to privacy in the digital age (OHCHR, 2014). Prompted by concerns about mass surveillance by some states, and responding to a call from the United Nations General Assembly to investigate the matter, the commissioner’s report hails a new era in human rights and the internet which will be of critical importance to policy-makers. With careful analysis based on more than 50 submissions, the report makes five main findings and recommendations: • Mass surveillance by its very nature interferes with the right to privacy, regardless of whether such data is used, and also interferes with other human rights. Surveillance measures must be necessary and proportionate • Imposition of mandatory retention of third-party data on private companies is neither necessary nor proportionate and therefore violates human rights • Inter-governmental intelligence-sharing regimes are contrary to human rights law: ‘secret rules and secret interpretations – even secret judicial interpretations – of law do not have the necessary qualities of law’ • Human rights apply regardless of frontiers and without discrimination – governments cannot avoid human rights obligations on grounds of extraterritoriality • Business and the private sector have been facilitating surveillance and must take more action to uphold human rights (specifically drawing on the Guiding Principles on Business and Human Rights) The implications of this report and related developments are profound and Commonwealth countries need to engage and support each other in responding to these new and emerging human rights issues. The Charter of the Commonwealth reaffirms the importance of democracy, human rights, the separation of powers, the rule of law and good governance, and the role of civil society. A more detailed discussion is needed about the state of internet-related human rights and the prospects and challenges for rights affirming responses. At the same time, technical assistance and support is needed in order to continue building high quality, affordable internet access for all. Endnotes 1 Examples include revelations by Edward Snowden, see also reports by Global Information Society Watch 2014 (available at: www.giswatch.org), among others. 2 The Internet Governance Forum is United Nations mandated, see: http://www.intgovforum.org/cms/ References Duncan, J., 2014. ‘Communications surveillance in South Africa: The case of the Sunday Times newspaper’. Global Information Society Watch 2014: Communications surveillance in the digital age. Montevideo: APC, Hivos. pp. 224–227. Dunn, H. and Brown, A., 2014, ‘Resisting citizen data handover in Jamaica: The case of Digicel vs INDECOM’. Global Information Society Watch 2014: Communications surveillance in the digital age. Montevideo: APC, Hivos. pp. 143–146. Greenwald, G., 2014. Why Privacy Matters webpage TED. Available at: www.ted.com/talks/glenn_greenwald_why_ privacy_matters/transcript?language=en Accessed 9 December 2014. ALAN FINLAY is the editor of Global Information Society Watch (www.giswatch.org), an annual report published by the Association for Progressive Communications (APC) and Hivos. He is a freelance researcher, writer and editor, and has spent the past 14 years working in the non-profit sector on issues including media rights, environmental sustainability and progressive internet policy. He lectures in development communication at the University of Witwatersrand in Johannesburg. JOY LIDDICOAT is a human rights lawyer specialising in ICTs for the Association for Progressive Communications (APC). A former commissioner with the New Zealand Human Rights Commission, she has worked in diverse public, private and civil society organisations at national, regional and global levels. Liddicoat participates in the Non Commercial Users Constituency of Internet Corporation for Assigned Names and Numbers (ICANN) and was a councillor on ICANN’s Generic Names Supporting Organisation Council from 2012–2013. She completed her LLM (Distinction) at Victoria University, Wellington in 2010 on domain name dispute resolution. She currently serves as vice president of InternetNZ.
CEP template 2012
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