A/HRC/27/37
lack of adequate national legislation and/or enforcement, weak procedural safeguards,
and ineffective oversight, all of which have contributed to a lack of accountability for
arbitrary or unlawful interference in the right to privacy.
48.
In addressing the significant gaps in implementation of the right to privacy, two
observations are warranted. The first is that information relating to domestic and
extraterritorial surveillance policies and practices continues to emerge. Inquiries are
ongoing with a view to gather information on electronic surveillance and the collection
and storage of personal data, as well as to assess its impact on human rights. Courts at
the national and regional levels are engaged in examining the legality of electronic
surveillance policies and measures. Any assessment of surveillance policies and
practices against international human rights law must necessarily be tempered against
the evolving nature of the issue. A second and related observation concerns the
disturbing lack of governmental transparency associated with surveillance policies,
laws and practices, which hinders any effort to assess their coherence with
international human rights law and to ensure accountability.
49.
Effectively addressing the challenges related to the right to privacy in the
context of modern communications technology will require an ongoing, concerted
multi-stakeholder engagement. This process should include a dialogue involving all
interested stakeholders, including Member States, civil society, scientific and technical
communities, the business sector, academics and human rights experts. As
communication technologies continue to evolve, leadership will be critical to ensuring
that these technologies are used to deliver on their potential towards the improved
enjoyment of the human rights enshrined in the international legal framework.
50.
Bearing the above observations in mind, there is a clear and pressing need for
vigilance in ensuring the compliance of any surveillance policy or practice with
international human rights law, including the right to privacy, through the
development of effective safeguards against abuses. As an immediate measure, States
should review their own national laws, policies and practices to ensure full conformity
with international human rights law. Where there are shortcomings, States should
take steps to address them, including through the adoption of a clear, precise,
accessible, comprehensive and non-discriminatory legislative framework. Steps should
be taken to ensure that effective and independent oversight regimes and practices are
in place, with attention to the right of victims to an effective remedy.
51.
There are a number of important practical challenges to the promotion and
protection of the right to privacy in the digital age. Building upon the initial
exploration of some of these issues in the present report, there is a need for further
discussion and in-depth study of issues relating to the effective protection of the law,
procedural safeguards, effective oversight, and remedies. An in-depth analysis of these
issues would help to provide further practical guidance, grounded in international
human rights law, on the principles of necessity, proportionality and legitimacy in
relation to surveillance practices; on measures for effective, independent and
impartial oversight; and on remedial measures. Further analysis also would assist
business entities in meeting their responsibility to respect human rights, including due
diligence and risk management safeguards, as well as on their role in providing
effective remedies.
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