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Engaging Privacy and Information Technology in a Digital Age
are not legally binding in a formal sense but are nevertheless highly influential in the development of regulatory policy with respect to privacy.
The legal systems of many, if not most, countries contain a variety of rules that embody elements of the basic principles typically found in data privacy instruments or that can otherwise promote these principles’ realization, albeit in incidental, ad hoc ways.81 However, what is primarily of interest in the following overview is the degree to which countries have adopted rule sets that are directly concerned with promoting data privacy. Also of primary interest is the degree to which countries provide for the establishment of independent agencies (hereinafter termed “data privacy agencies”) specifically charged with overseeing the implementation and/or further development of these rule sets.
B.4.1 International Instruments
The formal normative basis for data privacy laws derives mainly from catalogues of fundamental human rights set out in certain multilateral instruments, notably the Universal Declaration of Human Rights (UDHR)82 and the International Covenant on Civil and Political Rights (ICCPR),83 along with the main regional human rights treaties, such as the European Convention on Human Rights and Fundamental Freedoms (ECHR)84 and the American Convention on Human Rights (ACHR).85 All of these instruments—with the exception of the African Charter on Human and People’s Rights86—expressly recognize privacy as a fundamental human right.87 Not all human rights catalogues from outside the Western, liberal-democratic sphere repeat the African Charter’s omission of privacy. For example, the Cairo Declaration on Human Rights in Islam88 expressly recognizes a right to privacy for individuals (see the Declaration’s Article 18[b]-[c]).
The right to privacy in these instruments is closely linked to the ideals and principles of data privacy laws, although other human rights, such as
Rules concerning computer security, breach of confidence, defamation, and intellectual property are examples.
United Nations (UN) General Assembly Resolution 217 A (III) of Dec. 10, 1948.
UN General Assembly Resolution 2200A (XXI) of Dec. 16, 1966; in force March 23, 1976.
European Treaty Series No. 5; opened for signature Nov. 4, 1950; in force Sept. 3, 1953.
OAS Treaty Series No. 36; adopted Nov. 22, 1969; in force July 18, 1978.
OAU Doc. CAB/LEG/67/3 rev. 5; adopted June 27, 1981; in force Oct. 21, 1986.
See Universal Declaration of Human Rights (UDHR), Article 12; International Covenant on Civil and Political Rights (ICCPR), Article 17; European Court of Human Rights (ECHR), Article 8; American Convention on Human Rights (ACHR), Article 11. See also Article V of the American Declaration of the Rights and Duties of Man (OAS Resolution XXX; adopted 1948).
Adopted Aug. 5, 1990 (UN Doc. A/45/421/5/21797, p. 199).