Privacy and data protection

Privacy is an internationally recognised human right, enshrined in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the constitutions of more than 100 countries across the globe. Privacy is not only an important right in itself, but it is a key element of individual autonomy and dignity, and a strong enabler of political, spiritual, religious and even sexual freedoms. It is central to defining the relationship between a citizen and their government. Concrete expressions of the right to privacy are context specific, and may reflect cultural and societal differences.

The right to privacy encapsulates a right to protection of personal data: individuals have the right to decide whether to share or exchange their personal information and on what terms. Technologies are rapidly changing the nature and value of information, with huge volumes of personal data rapidly generated, transmitted, shared and collated. It is essential that governments are transparent and accountable in their handling of citizens’ personal information.

The right to privacy and the right to information – and freedom of expression – are both essential human rights and need to be balanced on a case by case basis. There are occasions when these rights will be in conflict, such as in mandating disclosure of the private interests of politicians. But in most cases these “information rights” are not opposed, and in fact mutually reinforce each other. They work in tandem to hold the powerful to account by establishing the right to know, mainly about the government, but also what information the government and relevant institutions may hold and utilise in decisions about a citizen (Banisar, 2011).

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Transparency efforts that respect privacy will try to correct information asymmetries between the powerful and rest of the population, while minimising intrusion to what is necessary to make the powerful accountable. Privacy should not be used as an excuse to avoid proper scrutiny.

Open government and transparency programmes place more information in the public domain, and can generate negative reactions if ordinary citizens feel that it is they – and not the powerful – who are exposed. The publication of health records, tax returns or even court transcripts have all proved problematic for individual privacy in different contexts. Technologies used for accountability – for example apps and websites collecting complaints about corruption – can have serious privacy implications. Such technologies involve the collection or storage of large amounts of potentially sensitive data, and as such raise risks of identification by third parties, and unforeseen access to data by governments (Open Rights Group, 2014).

The rights to privacy and data protection have a bearing on a multitude of government institutions, but are also important in the regulation of the private sector, including NGOs involved in development projects.

Police and security services are special cases since their responsibilities involve non-consensual intrusion into the private sphere in pursuit of public aims such as criminal justice and the protection of public safety and national security. Privacy issues relate to search and seizure powers, communications surveillance activities, and the establishment of DNA databases. The chapter of this guide on the Police and Security Sector contains specific recommendations.

The recommendations in this chapter are not prescriptive but examples to be adapted to local circumstances in order to enhance existing protections.

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