Digital technologies as a means of repression and social control
enforcement contexts. It is significantly covered in a report published in November 2020 by the Committee on the Elimination of Racial Discrimination recommending steps to prevent and combat racial profiling by law enforcement officials, for example 220. Furthermore, as already flagged in the previous chapter, several human rights institutions acknowledged the negative impact of the COVID-19 pandemic on the right to privacy and data protection. Some of the UN Special Rapporteurs explicitly noted in this context that ‘the virus is not just the cause of illness and death, it is also a pathogen of repression’ 221, and that ‘we could have a parallel epidemic of authoritarian and repressive measures’ 222. The current crisis has triggered unprecedented proliferation of human rights standards in the area of health-related surveillance systems. Several human rights institutions, both at the universal 223 and European 224 levels, adopted documents concerning the processing of health-related data for the purposes of combating the pandemic, addressing, among other things, the emergence of contact tracing apps. These documents point out the sensitive character of the processed data, and set minimal guarantees safeguarding rights to privacy and to protection of personal data that states should meet when deploying health surveillance mechanisms. They also emphasise that the emergency measures adopted in response the pandemic should not turn into standard practice. At the same time, the pandemic has increased the relevancy of pre-existing (but fairly recent) international standards and recommendations concerning the processing of health-related data. These include, for example, the CoE’s Committee of Ministers Recommendation 225, or a report from the UN Special Rapporteur on the right to privacy 226, as well as general principles that should govern surveillance and are applicable in the pandemic 227.
3.4
Disruptions to free flow of information online
A growing body of findings and resolutions, both at the universal and regional levels, suggest that intentional disruptions to the internet violate international law. In 2015, in a joint declaration on freedom of expression and conflict situations, and UN and regional monitors of freedom of expression, declared that the ‘filtering of content on the Internet, using communications “kill switches” (shutting down entire parts of communications systems) are measures which can never be justified under human rights law’ 228. At the Rights Committee often relies on General Comments in the course of monitoring implementation of the ICCPR by its State Parties, including examination of periodic reports by governments. 220 UN Committee on the Elimination of Racial Discrimination, ‘Preventing and Combating Racial Profiling by Law Enforcement Officials’, General recommendation No. 36, 2020. 221 UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, ‘Disease pandemics and the freedom of opinion and expression’, Report no. A/HRC/44/49, 2020. 222 S. Gebrekidan, ‘For autocrats and others, coronavirus is a chance to grab even more power’, New York Times, 30 March 2020. 223 UN, ‘Joint statement on data protection and privacy in the COVID-19 response’, published by UN agencies: IOM, ITU, OCHA, OHCHR, UNDP, UNEP, UNESCO, UNFPA, UNHCR, UNICEF, UNOPS, UPU, UN Volunteers, UN Women, WFP and WHO, 2020; UN WHO, ‘Ethical considerations to guide the use of digital proximity tracking technologies for COVID-19 contact tracing’, 2020; UN Special Rapporteur on the right to privacy, ‘Report no. A/75/147’, 2020. 224 While responding to other pandemic-related threats, the other regional human rights legal framework have not addressed this particular issue. At the European level, the relevant standards have been developer mainly by the Council of Europe, including: (1) two Joint Statements ‘on the right to data protection in the context of the COVID-19 pandemic’ and on ‘digital contact tracing’ by the Chair of the Committee of Convention 108 and the Data Protection Commissioner of the Council of Europe; (2) CoE Secretary General, ‘Respecting democracy, rule of law and human rights in the framework of the COVID-19 sanitary crisis: A toolkit for member states available in different languages’, 2020; (3) CoE, ‘Digital solutions to fight COVID-19’, 2020, report analysing the impact on the rights to privacy and data protection of the measures taken to prevent the spread of the COVID-19 pandemic in the 55 African, Latin-American and European countries Parties to Convention 108. 225 CoE Committee of Ministers, ‘Recommendation CM/Rec (2019)2 on the protection of health-related data’, 2019. 226 UN Special Rapporteur on the right to privacy, ‘Report no. A/74/277’, 2019. 227 UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, A/HRC/44/49, op. cit., 2020. 228 Available at: www.osce.org/fom/66176.
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