Photo of privacy commissioners who met in Albania in October, 2019. Photo from ICDPPC.

Published: October 29th, 2019

Privacy commissioners from around the world including Canada have urged governments to recognize privacy as a fundamental human right, and called on social media to do more to prevent their platforms from being exploited by terrorists and violent extremists

The calls were made in resolutions passed by the majority last week at the 41st International Conference of Data Protection and Privacy Commissioners (ICDPPC).

The privacy resolution plays an important next step in the commitment to privacy as a fundamental human right worldwide,”  Canadian privacy commissioner Daniel Therrien said in a statement.

“Privacy plays a vital role in enabling other key rights, such as human dignity, freedom, equality and democracy. It also supports responsible innovation by promoting trust in both government and business.”

While Canada’s Charter of Rights and Freedoms says everyone has the right to life, liberty and security of the person and the right to be secure against unreasonable search or seizure, it doesn’t expressly make privacy a fundamental right. Privacy lawyer Barry Sookman notes privacy here is recognized as a quasi-constitutional right. This would be through Supreme Court decisions and federal privacy laws that oblige private and public sector bodies to protect the collection of personal data and report data breaches.

Halifax privacy lawyer David Fraser said the only Canadian jurisdiction that comes close to a more general privacy right is in Quebec in section 5 of the its Charter of Human Rights.

However, these laws aren’t completely encompassing. For example federal political parties are exempt.

The resolution on privacy as a fundamental right, which was sponsored by Therrien, notes that the member states of the United Nations declared in 1948 that privacy is an inalienable and universal human right, and, in 1966, the central role that privacy plays in democracy was restated in the International Covenant on Civil and Political Rights. In addition over 80 countries have enshrined privacy rights for individuals in their national constitutions, legislation or some form of binding regulation.

The resolution urges governments to “recognize privacy as a fundamental human right, vital to the protection of other democratic rights – including the integrity of democratic process – and specifically ensure legal protections to prevent privacy intrusion, manipulation, bias or discrimination, given advancement of new technologies like artificial intelligence.”

The resolution also calls on legislators to “review and update privacy and data protection laws to ensure they offer strong protection, provide meaningful redress, and offer tangible remedies in light of global political and technological trends,” and that “regulators apply all relevant law (privacy, data protection, electoral, etc.) to activities of all actors in the political ecosystem, including registered parties, campaign organizations, data brokers, analytics firms, advertisers and social media, in order to ensure their full transparency, fairness and accountability.”

In addition, the resolution calls on businesses “to show demonstrable accountability by actively respecting and protecting privacy, data protection laws and other human rights – across all commercial activities – as key aspects of legal compliance, corporate social responsibility and an ethical business approach.”

The resolution on social media urges platforms to protect their services and users’ data from misuse and to stop the dissemination of terrorist and violent extremist content online while protecting freedom of expression.  Platforms should try to identify and classify published content as terrorist and violent extremist content to counter terrorist and violent extremist content online, it says.

Social media providers should also publish clear policies that identify the types of content that would amount to terrorist, violent extremist and unlawful content ensuring social media users are aware of the types of content that will be removed and deleted.

The commissioners also called on social media providers to be accountable for the content they remove to ensure
protections of freedom of expression.

Another resolution urged privacy commissioners to promote appropriate security safeguards such as workplace awareness programs to prevent human error that can result in personal data breaches.

Sookman said it’s hard to predict what the impact would be if Canada’s Charter is amended to recognize privacy as one of the fundamental rights.

But over time, he added, it could help shape the development of the common law to recognize a general privacy tort, as has occurred in the U.K. Such a tort would give individuals the right to sue for privacy breaches in civil court.

A privacy right could be used to invalidate a law that infringed on privacy using traditional Charter tests, he said.

“It would likely lead to further reforms of Canadian privacy laws to strengthen privacy.”



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