International Law
Privacy i(n)t context
The right to privacy, or the right to respect for private life, as the European Convention on Human Rights guarantees it, has been affected by the IT growth era. Privacy has long been protected, but will face a new dimension of protection for the generations to come. The right to respect for private life is not an absolute one, and may have a different feature in different context.
By Niemitz v. Germany judgment (1992) the European Court on Human Rights (‘the ECtHR’) included the right to connect with other individuals into the notion of private life, saying that it would be too restrictive to limit the notion of an ‘inner circle’ to personal life and exclude there from entirely the outside world not encompassed within that circle. The right to communicate was thus inserted into the privacy context.
But the extent of communication and technologies which enable it significantly changed since.
Few decades ago, it mainly consisted of personal communication, communication by conventional letters and phone communication. At the time the Convention was adopted in the mid last century, there was no internet, not even mobile/cell phones, nor personal computers. The feature of privacy protection was much more simple then today.
Now, when we approach the rule of IoT (internet of things) communication, not only do people communicate, but ‘things’ as well. The subject of that ‘non-human’ communication may also be private data of individuals. At the same time, the individual, human communication became more simple, available at any time, and versatile by its means.
New society digital evolution becomes a special challenge when speaking of the protection of privacy. Availability of every person not only in physical life but in cyber life as well, upgrades the privacy to a new sphere. If we do ourselves chose to use social networking, Skype, Instagram, Twitter, Yahoo Messenger, Linkedin, Facebook, the later being ‘the most powerful database of persons ever on internet’ as rightfully noted by prof. Bajrektarević, in his book ‘Is there life after Facebook?’ as well as other internet features, we must be aware that our privacy may come into the open. If we add to that e-context a physical surrounding of a working place, under certain conditions, the feature of privacy changes, i.e. it becomes less protected then in the context of an earthbound private circle, the surrounding which was in mind of lawmakers when adopting for instance the European Convention on Human Rights in 1950.
Recently, at the table of the ECtHR was the case of Barbulescu v. Romania (judgment enacted in January 2016), where the question arose of whether an employer is entitled to look into his employer’s private messages at Yahoo Messenger. The messages were written by the employee during the working time, at the computer owned by the employer. The employer monitored and made transcript of messages made at the Yahoo Messenger account that was created at the employer’s request for the purposes of contacts with clients, but the transcript also contained five short messages that Mr. Barbulescu exchanged with his fiancee using a personal Yahoo Messenger account.
The ECtHR found no violation of the right to respect the private life by such actions of the employer.
The ECtHR noted that the employer did not warn the employee of the possibility of checks of the Yahoo Messenger. However, the company where Mr. Barbulescu worked did adopt internal rules according to which it was strictly forbidden to use computers, photocopiers, telephones, telex and fax machines for personal purposes. Can that be seen as a warning? Does it give an employer a right to monitor personal messages of an employee?
We may wonder if the ECtHR gave the advantage to a market economy and profit growth, versus privacy? Did it give to employer the right to control the employee even if that would mean invading his privacy? This, under certain conditions, like internal policy rules or warning, gives the employers the right to rule the employees space, of course, during work hours, and their right to monitor the job done by his employees may be stronger then their right to privacy.
However one should be careful in concluding that all employers may now freely snoop into their employees’ e-mails, tweets, messages etc.
The ECtHR took into consideration the ‘expectation of privacy’, which Mr. Barbulescu, the employee, had regarding his communications. The internal rules of the employer which strictly prohibited the use of computers for private purposes, made the decisive shift towards ruling in favor of non violation. He probably should not have expected to have his privacy respected in such circumstances. But in the absence of such rules and in the absence of warning, any such intruding into employees’ private communication would rise an issue of privacy protection.
With the fast development of society and technology, the privacy is much more vulnerable, and it apparently affects its legal protection.
Almost two decades ago in the case of Halford v. UK the same ECtHR decided that tapping of Ms. Halford’s phone at the office did constitute a violation of her right to respect of her private life. Without being warned that one’s calls would be liable to monitoring the person would have reasonable expectation that his privacy is protected (Halford v. UK 1997). In Amann v. Switzerland ECtHR judgment (2000) telephone calls from business premises pursue to be clearly covered by ‘private life’ notion.
The ECtHR further spread the privacy protection to e-mails sent from work in the Copland v. United Kingdom judgment (2007). In this case it also decided that monitoring of telephone usage in the way of analysis of business telephone bills, telephone numbers called, the dates and times of the calls, duration and cost, constituted “integral element of the communications made by telephone”, and made an interference into the privacy. Moreover, the ECtHR was of the view that the storing of personal data relating to the private life of an individual also fell under the protection of the Article 8, being irrelevant whether it was or was not disclosed or used against the person. It further held that that ‘e-mails sent from work should be similarly protected under Article 8, as should information derived from the monitoring of personal Internet usage’ like analysing the websites visited.
In Halford and Copland case the personal use of an office telephone or e-mail or was either expressly or tacitly allowed by the employer. Accordingly the ECtHR found a violation of privacy when the employer intruded therein. In Barbulescu, on the other hand, due to the internal regulations that forbid the private use of computers, the ECtHR did not consider a monitoring by employer to be a violation of his privacy, although the intrudment happened in the form of making the transcript of employee’s messages and keeping that transcript. The ECtHR considered that ‘broad reading of Article 8 does not mean, however, that it protects every activity a person might seek to engage in with other human beings in order to establish and develop such relationships’ (Barbulescu para 35)
We can see that the position of employer towards allowing or non allowing phone, e-mail, or internet usage, made a diference as to the employee’s expectation of privacy. But can we add to that the more open communication, as a reason of lowering the level of the ‘expectation of privacy’?
It still remains up to the individual how he/she shall expose his/her privacy. The means of multiple communication, are now in everyone’s pocket, and a person does not have to use a land phone line, in order to call home. By simple touching the screen he/she may communicate, share, like, tweet, comment. If it is done during working hours, it gives, under certain conditions, a possibility to employers to look into that ‘share’, ‘like’, ‘tweet’, ‘comment’ and still not to invade anyone’s privacy.
The more open the conversation is, its protection gets more demanding and complicated. So the protection of privacy remains a big test for the future.
The European Commission has launched an EU Data Protection Reform in 2012, in order to ‘make the Europe fit for the digital age.’ Strengthening citizens’ fundamental rights, Digital Single Market, are the areas that need special attention. Currently in force Directive 95/46/EC of the European Parliament and of the Council of the EU of 1995, provides that personal data is ‘any information relating to an identified or identifiable natural person’.
Article 29 Data Protection Working Party (‘DPWP’), in 2002 adopted a Working Document on the Surveillance and the Monitoring of Electronic Communications in the workplace. According to that Document the mere fact that monitoring serves an employer’s interest could not justify an intrusion into workers’ privacy. Monitoring, according to the DPWP, must pass four tests: transparency, necessity, fairness and proportionality.
‘Workers do not abandon their right to privacy and data protection every morning at the doors of the workplace’ provides the Document, however, ‘this right must be balanced with other legitimate rights and interests of the employer, in particular the employer’s right to run his business efficiently to a certain extent’.
Under Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on Privacy and Electronic Communications) of 2002 ‘Member States shall ensure the confidentiality of communications and the related traffic data by means of a public communications network and publicly available electronic communications services, through national legislation.’ It provides for the prohibition of ‘listening, tapping, storage or other kinds of interception or surveillance of communications and the related traffic data by persons other then users without the consent of the users concerned’. Exceptions may be made, inter alia, for the interests of national security, prevention of criminal offences or of unauthorised use of the electronic communication system etc.
Data protection of citizens will be a big challenge in future. The judge Pinto de Albuquerque in his partly dissenting opinion in Barbulescu case has criticized the ECtHR’s majority in missing the chance to develop its case-law in the field of protection of privacy with regard to Internet communications and for overlooking, inter alia, some important features like sensitivity of the employee’s communication and non-existence of Internet surveillance policy duly followed by the employer (apart from the above mentioned internal regulations forbidding the use of computers).
On one hand there is a request for privacy protection, while on the other hand, there is a request from the market economy/employers that the job be done. The interests of the two must always be fairly balanced, but with the speedy development of technology and the internet interaction, the danger of exposing private data rises. That is why the legal creators have a big responsibility to act ahead of time, which, in the IT context, is running at the light speed.
Authors: Meherab Hossain and Md. Obaidullah*
Populism and nationalism represent two discrete political ideologies; however, they may pose potential threats to democracy. Populism is a political ideology and approach characterized by the emphasis on the interests and concerns of ordinary people against established elites or perceived sources of power and privilege. Populist leaders often portray themselves as champions of the “common people” and claim to represent their grievances and desires. It is a political stance that emphasizes the idea of “the people” and often contrasts this group against “the elite”.
Nationalism, on the other hand, is an ideology based on the premise that the individual’s loyalty and devotion to the nation-state surpass other individual or group interests. It represents a political principal positing that there should be congruence between the political entity and the nation-state. While populism emphasizes the idea of “the people,” nationalism emphasizes the idea of the nation-state.
In what ways can populism pose a threat to democracy?
While some argue that populism is not a threat to democracy per se, others contend that it poses a serious risk to democratic institutions. Populism can become a threat to democracy by undermining formal institutions and functions, discrediting the media, and targeting specific social groups, such as immigrants or minorities. This threat arises from its potential to confer a moral legitimacy upon the state that it might otherwise lack. Consequently, it can jeopardize the defense mechanisms established to safeguard against tyranny, including freedoms, checks and balances, the rule of law, tolerance, autonomous social institutions, individual and group rights, as well as pluralism. Populism imposes an assumption of uniformity onto the diverse fabric of reality, distorting not only factual representations but also elevating the attributes of certain social groups above those of others.
In Turkey, President Recep Tayyip Erdogan’s populist rhetoric and policies have led to the erosion of democratic institutions, including the judiciary and the media. Populism in Turkey can be traced back to the era of Mustafa Kemal Atatürk’s regime, during which Atatürk’s elites, who had limited commonality with the broader society, assumed the responsibility of educating and guiding the masses. This phenomenon, often referred to as ‘regime elitism,’ has rendered Turkey susceptible to populism, which fundamentally revolves around the conflict between the elites and the general populace.
In Hungary, Prime Minister Viktor Orban’s populist government has been accused of undermining the rule of law, limiting press freedom, and targeting civil society groups. He has established a repressive and progressively authoritarian state that operates under the guise of democracy.
In media discourse, he has been designated as a populist leader. Empirical analysis reveals that Hungary is currently governed by a form of political populism, characterized as conservative right-wing populism. The salient features of Hungarian political dynamics encompass the government’s claim of challenging established elites, a lack of a clearly defined political agenda, the utilization of propaganda as a prominent tool in its political communications, advocacy for the preservation of a Christian Hungary, intervention in areas traditionally considered independent from state interference such as education and jurisdiction, the implementation of mass clientelism to reward its supporters while exerting pressure on critics, and overt criticism of non-governmental organizations (NGOs). Consequently, this trajectory underscores the ascendance of authoritarianism within Hungary.
How Nationalism can be threat to Democracy?
Nationalism can pose a potential threat to both democracy and international relations when it manifests in forms of discrimination, violence, and the exclusion of specific groups. The ascension of nationalism may jeopardize the established efficacy of multilateralism, which has historically been instrumental in preserving lives and averting conflicts. This can result in unilateral actions by certain nations, thereby undermining the collaborative approach to the peaceful resolution of disputes.
Nationalism can serve as a catalyst for conflict and division, fostering tendencies toward exclusivity and competition that impede the resolution of common global challenges. The ascent of economic nationalism has the potential to undermine global collaboration and policy alignment, resulting in a resurgence of nationalist economic strategies in many regions worldwide. Such strategies often prioritize individual national objectives over the collective global interest. Unrestrained nationalism can pose a threat to stability by inflaming ethnic tensions, thereby increasing the likelihood of violence and conflict.
In Europe, nationalism has historically been a significant catalyst for conflict and division, spanning from the emergence of Nazi Germany in the 1930s to more recent upsurges of nationalist movements in various countries. Nationalism tends to foster exclusivity and competition, thereby complicating efforts to address common global challenges. Under nationalist ideology, exemplified by Hitler, instances of extreme cruelty and inhumanity have been documented.
Another instance of nationalism, which presents a significant challenge to democracy, is the ascendance of Hindu extremism and nationalism in India, resulting in communal tensions. Since the Hindu nationalist BJP came into power, there has been a heightened sense of insecurity among Muslims in India, with the situation reaching unprecedented levels of concern. The government has actively employed media, television, and the film industry to propagate Islamophobia among the Hindu majority. In 2018, the Indian High Court rendered a judgment advocating for India to be declared a Hindu state, citing the country’s historical religious divisions. Nonetheless, it is crucial to emphasize that, in accordance with its constitution, India is mandated to maintain a secular state. Needless to say, the rise of Hindu nationalism under Prime Minister Narendra Modi has been accused of fueling sectarian tensions and undermining the country’s secular democracy.
Indeed, while populism and nationalism are distinct concepts, their simultaneous global rise poses a considerable threat to democracy. These ideologies frequently favor specific groups over the broader population and can corrode democratic principles. They tend to exacerbate polarization and undermine vital democratic institutions. Hence, many countries are grappling with substantial challenges to their democratic systems, which puts their stability and effectiveness at risk.
*Md. Obaidullah holds both a BSS and an MSS degree in Public Administration from the University of Barishal. He is currently employed as a Research Assistant at the Centre for Advanced Social Research in Dhaka, Bangladesh. His writing expertise spans various subjects, including Public Policy, Politics, Governance, Climate Change, and Diplomacy, on which he frequently contributes
After listening to Hariri’s Home Sapiens, I grasped, with a new perspective, the state of our humanity. I deeply realized that indeed we are the last human species. Our closest relative and competitor, the Neanderthals, were long gone. So how do we, as homo sapiens (“wise men”), wisely ensure the well-being and future of our species? The question seems too general or even irrelevant to many considering that everyday life on Earth continues despite the horrors of war, the devastation of calamities, and the forebodings of apocalypticism. But let’s not toy around with the destructive propensity and capability of our species which could have played a significant role in the demise of the Neanderthals and could also threaten our very own existence.
Life on Earth now is multifaceted and more complex than when we were still cohabiting our planet with other human species. The ancient “us and them” have become the modern and ironically complicated “among us,” and consequentially “us versus us.” We have become the only remaining human species—but the only remaining species that wants to destroy itself for self-interest.
Reflecting on the implications of our being the only human species left on Earth, I deduce the following principles for our international relations.
As one human species living on one planet:
The principle of cohabitation
We all have the rights to peacefully and productively cohabit on planet Earth without the sequestration of others due to superficialdiversity such as geographical locations, skin color, social ideology, and culture; or because of national or corporate resource exploitation.
The principle of mutual survival
We cannot survive without the human ecosystem. Human life is a multidimensional ecosystem. It cannot survive and thrive with only one feature or characteristic in one locality. It necessitates global diversity and mutuality. For our species to survive, our relations need to be based on mutual universal survival.
The principle of co-thriving
We cannot thrive secluded from the universal life system. Regression and destruction of one geographical locus, one ethnicity, or one natural feature impacts the whole bio-societal system. Inversely, the flourishing of one locus, one ethnicity, or one natural feature in conjunction with others, furnishes the whole human system to thrive.
The principle of developmental competition
We have both the latent propensity for destructive bouts and a penchant for developmental competition. International relations based on destructive bouts eventually inflect global crises. Global relations based on developmental competition advance our civilization. Each progress in a varied sphere, though will not be the same, complements the whole progression.
The principle of common home protection
We only have one home, one present habitat for our species to live and thrive, and one human family. Allowing these to decay will not only result in our degeneration but also the eventual risk of our survival.
As homo sapiens, we are at the top of the food chain and intolerant. We want to devour everything we can see and irrationally have the delusion of grandeur of being the only predator left. But the prey and the predator are one and the same. It’s not so naïve to outline what can be tagged as an idealistic theoretical construct. But let’s also accept the fact that the most influencing factors in our international relations are either commercially exploitive or ideologically invasive. And these are not sustainable and globally beneficial—for they are calculated goodness intended for the temporal benefits of the very few. The principle of the common good will enable us to see more beyond our present state and ensure the well-being and future of our species.
Working towards better results on the ground and focused on the future, the UN family is undergoing a reset that will give rise to more agile, tech-savvy and impactful UN organizations.This transformation in skills and culture, encapsulated in the Secretary-General’s vision of a UN 2.0, is focused on fostering cutting-edge capabilities in data, digital, innovation, foresight and behavioural science – to deliver stronger results, better Member State support, and faster progress towards the Sustainable Development Goals.
During a roundtable with Member States, a group of UN leaders and experts explained the potential and strategies of UN 2.0. They highlighted early success stories, that, when replicated, will boost on-the-ground impact of a stronger, more flexible and modern UN.
This event came before the launch of the Secretary-General’s policy brief on the issue of a UN 2.0 revamp.
At the core of UN 2.0 is the so-named ‘Quintet of Change’, a powerful combination of data, innovation, digital solutions, foresight, and behavioural science solutions.
Opening the discussion, Melissa Fleming, the Under-Secretary-General for Global Communications, emphasized the need for change, highlighting that the progress towards the 2030 Agenda for Sustainable Development – adopted by all UN Member States in 2015 as a blueprint for peace and prosperity – is currently not on track.
Responding to the growing demand for reform, UN 2.0 represents a shift in how UN system organizations operate, aiming to accelerate progress towards the Sustainable Development Goals (SDGs).
Guy Ryder, the Under-Secretary-General for Policy, who brings extensive experience from his decade-long tenure leading the International Labour Organization (ILO), explained that the purpose of UN 2.0 is to equip UN organizations with the contemporary expertise required to be an effective partner for Member States in the twenty-first century.
A transformed UN leaves no one behind
Catherine Pollard, the Under-Secretary-General for Management Strategy, Policy, and Compliance, explained that the primary beneficiaries of UN 2.0 are the people the UN serves in its 193 member countries. “But equally important, UN 2.0 is about UN organizations themselves, because they will develop new skills, new talent, new purpose to better deliver our mandate.”
The UN continues to be a relevant player in the multilateral arena. To maintain this relevance, Ms. Pollard said, the Organization will develop employees’ skills, offer more training, attract new talents, and improve human resources policies.
Like many things in the modern world, UN 2.0 will be driven by digital solutions and cutting-edge technologies. Robert Opp, Chief Digital Officer of UNDP, the UN agency promoting international development, advocated for the potential that new technologies offer and contemplated on what the future can bring.
“AI is the current challenge, but there will be quantum computing and other breakthroughs around the corner, what we haven’t even anticipated,” he said, adding that when the ‘Quintet of Change’ is successfully implemented across the UN system, the Organization’s agility in responding to new challenges and in helping Member States will increase dramatically.
Data, digital innovation, foresight and behavioural science play key roles
The UN is actively supporting Member States in their pursuit of new solutions. A network of innovation labs has been established in more than 90 countries, serving as platforms for sharing new expertise in technology, data and other areas.
One notable success story comes from Indonesia, explained Faizal Thamrin, Data Scientist at UN Global Pulse Asia-Pacific. He illustrated how his team collaborated with the Government and thousands of small and medium enterprises to prepare for the future. Additionally, the team’s data analytics skills, combined with Indonesia’s experience, helped replicate early warning systems for natural disasters across the region.
UN 2.0 extends beyond data and digital solutions. Behavioural science, a multidisciplinary field that integrates insights from psychology, economics, communications, data science, sociology, and more, plays a crucial role in the ‘Quintet of Change’.
Claire Hobden, an ILO expert on domestic work, provided an example from Argentina’s informal sector. With support from UN colleagues, the Government was able to significantly expand social security coverage to domestic workers, such as nannies and caregivers, who are often hard to reach.
“Through a very small intervention we hope to be able to give more people access to social security, realizing their rights and access to decent work,” said Ms. Hobden noting the huge potential of replicating these methods, as there are 75 million such workers around the globe.
‘With new tools, we can do better’
In conversation with senior diplomats, Mr. Ryder emphasized that UN 2.0 is about potential of doing our job better “if we take a fresh look at some of the things we’ve been doing for a long time.”
Commenting on the journey ahead for UN colleagues, Mr. Ryder said “What you’ve done has been great. Now we have new tools. Let’s pick up those new tools, use them and maybe we can improve on what we’ve done before. It’s not saying what happened in the past was bad. It’s saying what we do in the future can be better”.
The event was co-organized by the Permanent Missions of Norway and the Republic of Indonesia to the United Nations in partnership with the Executive Office of the Secretary-General.
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