A/HRC/28/39
ideas that could be freely expressed, to choose which religion in which to worship and
which political party to support. Ms. Nyst explained that the right to privacy was first
articulated in international law in the Universal Declaration of Human Rights, when the
drafters were clear not only about the necessity of the inclusion of the right to privacy, but
also about the importance of the right to privacy of communications, as shown by the
travaux preparatoires to the Declaration.
19.
Ms. Nyst noted that many common actions done on a daily basis included a
“communication”, such as sending an e-mail or a text message, accessing a bank account,
searching for information on the Internet, or accessing government services. Any digital
communication involved private data travelling around the world, and through the cables of
many private companies, before it reached its destination. The challenge that technology
posed to privacy was to ensure that the obligations of the State to respect, fulfil and protect
the right to privacy and the responsibilities of the private sector were meaningful in the
digital era. She noted that the legal framework already existed, as the right to privacy was
enshrined in most international and regional human rights treaties and in many national
constitutions, and that a new understanding of how those texts applied was needed.
20.
The Special Rapporteur on freedom of expression of the Inter-American
Commission on Human Rights referred to the opportunities for the free expression,
communication and exchange of information created by the Internet. She noted that, at the
same time, the capture, storage, and administration of enormous quantities of data had also
been facilitated. That information, whether content data or metadata, could be highly
revealing of even the most intimate aspects of the private lives of individuals or
communities. She noted that legal frameworks had not followed the pace of technological
developments in the digital era, and stressed the need for regulation of both the collection
and analysis of information, taking into account freedom of expression, the right to privacy
and other relevant human rights.
21.
Ms. Botero further noted that surveillance policies could have an impact on a broad
spectrum of human rights. She referred to the impact of surveillance on the right to freedom
of expression, either directly when the right could not be exercised anonymously as a
consequence of surveillance, or indirectly, because the mere existence of surveillance could
have a chilling effect, instil fear and inhibition and make individuals cautious about what
they said and did. She explained that, because the right to freedom of expression was a
platform right, its violation could also lead to the violation of other rights, including
freedom of association, freedom of assembly, religious freedoms and the right to health.
Because of the potential impact of surveillance activities on the entire human rights
architecture, there was a need for States to revise their laws to establish limits on
surveillance programmes, which should include respect for the principles of necessity and
proportionality, and appropriate monitoring mechanisms. Ms. Botero explained that
because the Internet was a special and unique communications medium that enabled the
free, plural, and democratic exercise of the right to freedom of expression, its governance
was a particularly relevant matter. She noted that in order to make sure that all relevant
points of view could be properly considered, States must ensure the equal participation of
all actors relevant to the governance of the Internet and foster strengthened cooperation
between the authorities, academia, civil society, the scientific and technical communities
and the private sector, both nationally and internationally.
22.
The Louis Henkin Professor of Human and Constitutional Rights at Columbia Law
School stated that all persons, regardless of location or nationality, were protected by
human rights that were universal and inherent to human dignity. She noted that State
surveillance practices sometimes distinguished between citizens and non-citizens. In that
regard, Ms. Cleveland stressed that, as recognized by the Human Rights Committee, the
principle of non-discrimination in article 2 of the International Covenant on Civil and
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