Privacy and data protection

Updates

Sean Fine, justice writer for the Globe and Mail reports that the Canadian Supreme Court will not require that the Canadian Broadcasting Corporation (CBC) unpublish (remove) an article from its website, even though a ban on the reported victim's identity was put in place. The two-year debate, which includes an order of contempt against the CBC, involves questions of freedom of expression and privacy, often referred to together as the right to be forgotten. Iwona Kuklicz, of the Alberta Justice Department, filed an appeal to this ruling noting that 'Every media organization, and every individual with an online platform, has been handed an incentive to rush to publish information before a ban can be issued.' 

In a 2016 article, also in the Globe and Mail, Silvia Stead, Globe and Public Mail Editor, wrote that 'We’re not in the unpublishing business,' noting that '[...] the public has an expectation that the archives can be viewed and are true to their original form. In many ways, they are part of history.' She concluded her piece saying 'Years ago, the paper was the permanent record, and online seemed ephemeral; in fact, the reverse is true.'

 

 

The European Commission, through its Directorate-General for Communications Networks, Content and Technology, has sent a letter to the Internet Corporation for Assigned Names and Numbers (ICANN), expressing concerns over the organisation's proposed models for ensuring compliance between its WHOIS policy and the EU General Data Protection Regulation (GDPR). In the letter, the Commission asks ICANN to delay its final decision on an interim model, and to instead allow for further 'discussion with all stakeholders involved, as well as the data protection authorities'. It also noted that the proposed models are abstract, and difficult to assess regarding their scope and impact, therefore encouraging ICANN to further develop possible options 'to balance the various legal requirements, needs, and interests'.​ The letter came a few weeks after the EU Commissioner for Migration, Home Affairs and Citizenship, the Commissioner for Justice, Consumers and Gender Equality, and the Commissioner for the Security Union wrote to ICANN's CEO on the same topic GDPR compliance.

A UK court found the government’s mass surveillance powers unlawful, which could force changes to the country’s spy laws. The media reports that the judges at the Court of Appeal ruled that the data retention law, which allowed authorities to access an individual’s phone and email records, was not subject to adequate safeguards. The Data Retention and Investigatory Powers Act forces telecommunications companies to store records about customers’ emails and phone calls for a period of 12 months. The Investigatory Powers Act broadened the data retention system by allowing the government to compel phone and Internet companies to also store logs showing the websites customers visited and the apps used. This meant that law enforcement agencies were able to access this information without a warrant for a broad range of reasons, and not necessarily related to a criminal activity. This ruling partly reaffirms a December 2016 judgment in the European Union’s top court, which found that the UK government’s data retention powers were ‘highly invasive and exceeded the limits of what is strictly necessary and cannot be considered to be justified, within a democratic society’. Martha Spurrier, human rights ‘Liberty’ group director, said: ‘Yet again U.K. court has ruled the government’s extreme mass surveillance regime unlawful. This judgment tells ministers in crystal clear terms that they are breaching the public’s human rights. … When will the government stop bartering with judges and start drawing up a surveillance law that upholds our democratic freedoms?’.

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Privacy and data protection are two interrelated Internet governance issues. Data protection is a legal mechanism that ensures privacy. Privacy is usually defined as the right of any citizen to control their own personal information and to decide about it (to disclose information or not). Privacy is a fundamental human right. It is recognised in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and in many other international and regional human rights conventions. The July 2015 appointment of the first UN Special Rapporteur on the Right to Privacy in the Digital Age reflects the rising importance of privacy in global digital policy, and the recognition of the need to address privacy rights issues the the global, as well as national levels.

 

Frameworks for safeguarding the right to privacy and data protection

The International Covenant on Civil and Political Rights (ICCPR) is the main global legal instrument for the protection of privacy. At a regional level, the main instruments on privacy and data protection in Europe is the Council of Europe (CoE) Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data of 1981. Although it was adopted by a regional organisation (CoE), it is open for accession by non-European states. Since the Convention is technology neutral, it has withstood the test of time. The EU Data Protection Directive (Directive 95/46/EC) has also formed an important legislative framework for the processing of personal data in the EU and has had a vast impact on the development of national legislation not only in Europe but also globally. This regulation has also entered a reform process in order to cope with the new developments and to ensure an effective privacy protection in the current technological environment.

Another key international – non-binding – document on privacy and data protection is the OECD Guidelines on Protection of Privacy and Transborder Flows of Personal Data from 1980. These guidelines and the OECD’s subsequent work have inspired many international, regional, and national regulations on privacy and data protection. Today, virtually all OECD countries have enacted privacy laws and empowered authorities to enforce those laws.

While the principles of the OECD guidelines have been widely accepted, the main difference is in the way they are implemented, notably between the European and US approaches. In Europe there is comprehensive data protection legislation, while in the USA the privacy regulation is developed for each sector of the economy including financial privacy (the Graham-Leach-Bliley Act), children’s privacy (the Children’s Online Privacy Protection Act) and medical privacy (under the Health Insurance Portability and Accountability Act).

Another major difference is that, in Europe, privacy legislation is enforced by public authorities, while in the USA enforcement principally rests on the private sector and self-regulation. Businesses set privacy policies. It is up to companies and individuals to decide about privacy policies themselves. The main criticism of the US approach is that individuals are placed in a comparatively weak position as they are seldom aware of the importance of options offered by privacy policies and commonly agree to them without informing themselves.

These two approaches – US and EU – to privacy protection have generated conflict. The main problem stems from the use of personal data by business companies. How can the EU ensure that data about its citizens is protected according to the rules specified in its Directive on Data Protection? According to whose rules (the EU’s or the USA’s) is data transferred through a company’s network from the EU to the USA handled?

A working solution was found in 2000 when the European Commission decided that EU regulations could be applied to US companies inside a legal ‘safe harbour’. US companies handling EU citizens’ data could voluntarily sign up to observe the EU’s privacy protection requirements. Having signed, companies were required to observe the formal enforcement mechanisms agreed upon between the EU and the USA.

The so-called Safe Harbor Agreement was received with a great hope as the legal tool that could solve similar problems with other countries. However, it was criticised by the European Parliament for not sufficiently protecting the privacy of EU citizens.

In a turning point for data transfers between the EU and the USA, in October 2015, the Court of the Justice of the European Union (CJEU) struck down this long-standing agreement and declared the Safe Harbour Agreement to be invalid. The Court found that the European Commission had failed to examine whether the USA afforded an adequate level of protection equivalent to that guaranteed in EU, but simply examined the safe harbor scheme. It found that in the US, the scheme is applicable only to undertakings that adhere to it, whereas public authorities are not subject to it, and national security, public interest and law enforcement requirements prevail over scheme. The US scheme therefore enables interference by public authorities, whereas no such limitations exist under EU law.The Court also found that the powers of national supervisory authorities could not be diminished other than by the Court.

Given the high importance of privacy and data protection in the relations between the USA and the EU after the Snowden revelations, it is likely to expect higher pressure to find a post-Safe Harbour Agreement solution.

Events

Actors

(ISO)

More and more standards and guidelines developed by ISO cover issues related to data and information security,

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More and more standards and guidelines developed by ISO cover issues related to data and information security, and cybersecurity. One example is the 27000 family of standards, which cover aspects related to information security management systems and are used by organisations to keep information assets (e.g. financial data, intellectual property, employees’ information) secure. Standards 27031 and 27035, for example, are specifically designed to help organisations to effectively respond, diffuse and recover from cyber-attacks. Cybersecurity is also tackled in the framework of standards on technologies such as the Internet of Things, smart community infrastructures, medical devices, localisation and tracking systems, and future networks.

(UN OHCHR)

Challenges to the right to privacy in the digital age (such as surveillance and interception) are among the is

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Challenges to the right to privacy in the digital age (such as surveillance and interception) are among the issues covered by activities of the High Commissioner for Human Rights. At the request of the UN General Assembly, the Commissioner prepared a report of the right to privacy in the digital age, which was presented to the Assembly in December 2014. The office of the Commissioner also organises discussions and seminars on the promotion and protection of the right to privacy in the online space, and collaborates on such issues with the UN Special Rapporteur on the right to privacy.

(UNHRC)

Privacy and data protection online has been the subject of many UNHRC resolutions.

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Privacy and data protection online has been the subject of many UNHRC resolutions. General resolutions on the promotion and protection of human rights on the Internet have underlined the need for states ensure a balance between cybersecurity measures and the protection of privacy online. The Council has also adopted specific resolutions on the right to privacy in the digital age, emphasising the fact that individuals should not be subjected to arbitrary of unlawful interference with their privacy, either online or offline. The UNHRC has also mandated the Special Rapporteur on the right to privacy to address the issue of online privacy in his reports.

(ECHR)

The European Court of Human Rights deals with privacy through the prism of Article 8 of the

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The European Court of Human Rights deals with privacy through the prism of Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms. It adjudicates on cases brought on against Council of Europe member states accused of being in violation of one or more articles of the Convention. The ECHR has a broad view of what it deems to be protected as ‘personal data’ as any information related to a person (identified or identifiable), which falls under the ‘private life’ part of Article 8. Its most recent high-profile case on the issue found the Hungarian government in breach of Article 8, due to its broad surveillance law.

(CoE)

The Council of Europe has been actively involved in policy discussions on the issue of net neutrality.

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The Council of Europe has been actively involved in policy discussions on the issue of net neutrality. In 2010, the Committee of Ministers adopted a Declaration on network neutrality declaring its commitment to the principle of net neutrality. Later on, and in line with the Council’s Internet Governance Strategy, the Committee adopted a Recommendation on protecting and promoting the right to freedom of expression and the right to private life with regard to network neutrality, calling on member states to safeguard net neutrality in legal frameworks. Issues related to net neutrality and its connections with human rights are also tackled in events organised and studies conducted by the Council.

(PI)

Privacy International’s work is varied, in terms of both subject matter and actions.

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Privacy International’s work is varied, in terms of both subject matter and actions. Their three main areas are ‘Building a Global Privacy Movement’, ‘Challenging Data Exploitation’ and ‘Contesting Surveillance’, while their actions include research (Privacy 101 explainers and broad-ranging reports) and legal action. A majority of its most recent work has skewed towards issues of surveillance around the world, with a specific focus on Kenya, which relies heavily on its Privacy International Network.

World Bank
(World Bank)

Hivos
(Hivos)

US Congress
(US Congress)

G20
(G20 )

G7
(G7)

Access Now
(Access)

Freedom House
(Freedom House)

Pew Research Center
(Pew Research)

Instruments

Conventions

Link to: Convention on Cybercrime (Budapest Convention)-482 (2001)

Judgements

Case of Barbulescu v Romania - European Court of Human Rights (2016)
Google Spain SL and Google Inc. v Agencia Española de Protección de Datos (AEPD) and Mario Costeja González Case - Court of Justice of the European Union (2014)

Resolutions & Declarations

IPU Resolution: 'Democracy in the Digital Era and the Threat to Privacy and Individual Freedoms' (2015)
Universal Declaration of Human Rights (1948)

Standards

Request for Comments (RFC) dealing with Privacy and Data Protection (2015)

Recommendations

Other Instruments

Suplementary act on personal data protection within ECOWAS (2010)
Patriot Act (2001)

Resources

Articles

Apple vs FBI: A Socratic Dialogue on Privacy and Security (2016)
2016 Data Threat Report (2016)
Trends in Transition from Classical Censorship to Internet Censorship: Selected Country Overviews (2012)
Policy and Regulatory Issues in the Mobile Internet (2011)

Publications

Internet Governance Acronym Glossary (2015)
Securing Safe Spaces - Online Encryption, online anonymity, and human rights (2015)
An Introduction to Internet Governance (2014)

Papers

Expert and Non-Expert Attitudes towards (Secure) Instant Messaging (2016)
Personal Data Storage in Russia (2015)

Reports

Technology, Media and Telecommunications Predictions 2017 (2017)
Drones and Privacy by Design: Embedding Privacy Enhancing Technology in Unmanned Aircraft (2016)
Enabling Growth and Innovation in the Digital Economy (2016)
One Internet (2016)
Encryption: A Matter of Human Rights (2016)
A New Regulatory Framework for the Digital Ecosystem (2016)
The Impact of Digital Content: Opportunities and Risks of Creating and Sharing Information Online (2016)
NI Trend Watch 2016 (2015)
Freedom on the Net 2015 (2015)
OECD Digital Economy Outlook 2015 (2015)
Global Internet Report 2015 (2015)
Government Request Report (2015)
Taxation and the Digital Economy: A Survey of Theoretical Models (2015)

GIP event reports

The Legal Framework for Countering Terrorist and Violent Extremist Content Online (2017)
Where and How to Protect Legal Interests in the Digital Era (2017)
Addressing Access to Remedy in the Digital Age: Corporate Misconduct in Sharing and Processing Personal Data (2017)
Big Data and Conflict Prevention: Balancing Opportunities with Challenges (2017)
Recent Cyber Incidents - Patterns, Vulnerabilities and Concerns (2017)
Artificial Intelligence, Justice and Human Rights (2017)
Realizing Rights Online: From Human Rights Discourses to Enforceable Stakeholder Responsibilities (2017)
Key-note Speeches on the Future of the Internet (2017)
Digital citizenship, Integration, and Participation (2017)
GAC Meeting with the ICANN Board (2017)
Cross-Community Discussion on Next-Generation gTLD Registration Directory Services (RDS) Policy Requirements (2017)
At-Large Advisory Committee (ALAC) and Regional Leaders Wrap Up – Part 2 (2017)
GDPR and Its Potential Impact: Looking for Practical Solutions (2017)
International Trade Agreements and Internet Governance (2017)
EuroDIG 2017 Welcoming Address (2017)
Domain Names Innovation and Competition (2017)
Data Protection, Digital Trade and Development (2017)
Report for EBU Big Data Conference 2017 (2017)
ICANN58: GNSO Registration Directory Services (RDS) Policy Development Process Working Group Meeting (2017)
ICANN58: Public Forum 1 & 2 (2017)
Report for Symposium on The Future Networked Car (2017)
Report for ITU CWG-Internet - 4th Physical Open Consultation Meeting (2017)

Other resources

Internet Legislation Atlas (2016)
Security and Privacy Handbook: 100 Best Practices in Big Data Security and Privacy (2016)
Security for All: An Open Letter to the Leaders of the World's Governments (2016)
The Twitter Rules (2016)
Privacy Level Agreement [v2]: A Compliance Tool for Providing Cloud Services in the European Union (2015)

Processes

Session reports

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12th IGF 2017

WTO Public Forum 2017

WSIS Forum 2017

IGF 2016

WTO Public Forum 2016

WSIS Forum 2016

WSIS10HL

IGF 2015

 

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