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Urgent Mandate, Unhurried Response:

An Evaluation of the UN Special Rapporteur on the Right to Privacy

DOI https://doi.org/10.21552/edpl/2017/1/8

Marc Rotenberg


No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks. – Article 12, Universal Declaration of Human Rights
1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. 2. Everyone has the right to the protection of the law against such interference or attacks. – Article 17, International Convention on Civil and Political Rights
In 2015, the United Nations (UN) established a Special Rapporteur on the Right to Privacy (SRP) following the disclosure of mass surveillance by the US National Security Agency. Consistent with the procedures for the establishment for Special Rapporteurs, the SRP was given a broad mandate to protect and promote the right to privacy set out in Article 12 of the Universal Declaration of Human Rights (UDHR) and Article 17 of the International Covenant on Civil and Political Rights (ICCPR). The mandate set out the expectation that the Special Rapporteur would gather relevant information, make recommendations, raise awareness, report violations, identify emerging issues and report annually on his work. This article reviews the background of mandate, summarizes the activities to date, identifies shortcomings and then proposes a series of reforms, drawing on the literature of UN Special Procedures, the work of other Special Rapporteurs and human rights nongovernmental organisations in the privacy field. Although Special Rapporteurs often encounter delays at the outset of a mandate, the Special Rapporteur has created unnecessary delay with the effort to redefine the right to privacy rather than to ‘promote and protect’ the well-established human rights norm that is the cornerstone of the privacy mandate.

Marc Rotenberg is Adjunct Professor at Georgetown University Law Center where he has taught the Law of Information Privacy since 1990. He is coauthor, with Professor Anita L Allen, of Privacy Law and Society (West 2016), as well as editor of many publications, including The Privacy Law Sourcebook: United States Law, International Law, and Recent Developments (EPIC 2016). The author gratefully acknowledges the extensive research of EPIC Law Fellow Eleni Kyriakides, as well as the comments of many experts, including David Flaherty, Justice Michael Kirby, John Knox, Ted Piccone, Martin Scheinin and Gabriela Zanfir. The author also acknowledges the assistance of many NGO leaders who asked that their names not be included. Privacy should be protected, particularly in articles on privacy. For correspondence: <mailto:rotenberg@epic.org>. DOI: 10.21552/edpl/2017/1/8

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