UNITED NATIONS EDUCATIONAL, SCIENTIFIC & CULTURAL

 

ORGANISATION

 

INTERNATIONAL DIMENSIONS OF CYBERSPACE LAW

 

PROTECTION OF PRIVACY AND HUMAN RIGHTS IN THE

 

DIGITAL AGE

 

The Hon Justice Michael Kirby 1

 

PRESENT AT THE CREATION

 

I was present at the creation of the early international responses to the digital age. It is ten years since the work towards the OECD Guidelines on Security of Information Systems was begun 2 . It is twenty years since the work resulting in the OECD Guidelines on Privacy commenced 3 . These efforts represent examples of the remarkable developments which have followed the end of World War II aimed at building an international legal order upon new foundation: one of which is "respect for human rights and fundamental freedoms" 4 .

 

It is fifty years since the creation of UNESCO, whose mission is to build peace in the minds of people everywhere through education, science and cultural cooperation. It is fifty years since the Universal Declaration of Human Rights was adopted. In that half century, a paradox has emerged. Governments and other political entities need protections themselves lest, as a result of modern technology, they, and the citizens and residents in their jurisdictions, lose rights hitherto regarded as fundamental or at least very important for humanity's well-being and peaceful governance 5 .

 

The second half of the century which is about to close has seen a "remarkable revitalisation and extension of the great 17th and 18th century doctrine of human rights" 6 . In part, this development has occurred because of the espousal of that doctrine by great nations founded in revolutions at the time of its earlier exposition: the French Republic and the United States of America. But in part, it represents the response of the entire international community to the horrors of global war and genocidal inhumanity. The positive and negative effects of technology were appreciated fifty years ago. Technology could hardly have been overlooked in the aftermath of Hiroshima. Thirty years ago, at the international conference on human rights in Teheran, Iran, the participants agreed 7 :

 

"While scientific discoveries and technological advances have opened up prospects for economic, social and cultural progress, such developments may nevertheless endanger the rights and freedoms of individuals and will require continuing attention."

 

A resolution was subsequently adopted by the General Assembly of the United Nations 8 . It invited the Secretary-General, in cooperation with the specialised agencies, including UNESCO, to undertake a study of the problems arising in connection with human rights from developments in science and technology. Amongst the issues specified as requiring study were 9 :

 

"(a) Respect for the privacy of individuals and the integrity and sovereignty of nations in the light of advances in recording and other techniques.

 

(b) Protection of the human personality and its physical and intellectual integrity in the light of advances in biology, medicine and biochemistry.

 

(c) Use of electronics which might affect the rights of persons and the limits which should be placed on such use in a democratic society.

 

(d) More generally the balance which should be established between scientific and technological progress and the intellectual, spiritual, cultural and moral advancement of humanity."

 

International, regional and national bodies have been struggling with the social, ethical and legal implications of technological developments over the past fifty years. The developments which have the greatest potential significance for human rights obviously include nuclear physics, biotechnology and informatics. Ten years ago, I suggested 10 that what was lacking at the international level, as in domestic jurisdiction, was a perception of the relevance of scientific developments for the concept of human rights. I suggested that this was because of the fragmentation of priorities, the dominance of lawyers in the debates on human rights, the limited perspective of specialised institutions and the highly controversial nature of the moral dilemmas posed. It is worth repeating my conclusion 11 :

 

"For these and other reasons there has been little endeavour to reflect the major scientific and technological developments of the last fifty years, and their impact on human rights, in a conceptual way. Instead, old human rights instruments developed for earlier times are scrutinised for their possible utility in solving the controversies presented by the new technology. Piece-meal legislation is enacted. No Luther of jurisprudence has emerged to pull together the implications of nuclear physics, informatics and biotechnology for 21st century man and woman."

 

In the decade since those words were written, the fundamental problem has remained unresolved. But the urgency of finding solutions has increased. In informatics, there has been a rapid convergence of technologies. Telecommunications have merged with computerisation linked with other systems of communication 12 . Connections have been forged between nuclear physics, informatics and biotechnology. The Star Wars system had a troubling potential to link nuclear weaponry and informatics. The Human Genome Project, the greatest scientific cooperative endeavour in history, would not be possible but for the linkages of information technology and biological research 13 . It is important to realise the interconnections of scientific advances and to study their impact on human rights. Thus, the privacy of genetic information is as much an issue for human rights in the context of informatics as it is in the context of biotechnology. Principled responses, defensive of human rights and fundamental freedoms, will necessarily have common themes. That is why the initiative of UNESCO to search for these common themes as a stimulus to governments faced with global phenomena, is to be welcomed. If UNESCO did not do it, who else would?

 

Those who were living fifty years ago, are now a small and declining proportion of humanity. In the twenty years since the OECD Guidelines on Privacy were formulated, a child has reached adulthood. The Internet has been launched. It expands at an astonishing rate with world-wide users doubling every twelve months 14 . William Gibson's vision of cyberspace 15 is fast becoming a reality. Starting with 8.5 million users in 1995, the Internet is expected to reach over 142 million users by the year 2000 16 . For a pertinent analogy, it is necessary to go back to Gutenberg's printing press 17 .

 

Look ahead. Imagine the way in which the lives of human beings will be altered in the future as the global network of inter-connected users of information technology becomes bigger and even more powerful. Already, informed writers are offering their predictions. Edward Cornish, for example 18 has sketched ninety-two ways in which, he claims, the lives of ordinary people will change over the next thirty years. Global culture, education, employment, production and even crime will be affected. Local cultures and languages will decline. Increased drug use and the risks of cyber-crime and terrorism will be larger problems. Privacy, it is argued, will be harder to maintain. Not unconnected, inter-personal relationships of human beings will be increasingly unstable. Cornish's conclusion is that the unprecedented power to choose will often result in less sensible action and greater conflict. Governments will have limited control over cyberspace and over the pace at which globalisation of the inter-connected human mind is occurring. Given UNESCO's Charter, which addresses the "minds of men" it is imperative that UNESCO should address the risks of conflict and the dislocation of such changes in the cyber-minds of the coming decade.

 

Other contributors will describe the history, origins, growth and expected trajectory of the Internet and of the World Wide Web ("the web") which have grown out of it as a consequence of hypertext markup language. Having sketched the background against which attempts must be made to protect privacy and other human rights, I propose to mention some of the problems which need to be addressed; some of the protections which are already in place; and some of the developments which need to occur if the international community is to protect fundamental human rights in the digital age.

 

RECEDING PRIVACY

 

Many of the problems which were identified at the time of the OECD Guidelines on Privacy are now enlarged or altered by the development of the Internet. The speed, power, accessibility and storage capacity for personal information identifying an individual are now greatly increased 19 . Some of the chief protections for privacy in the past derived from the sheer costs of retrieving personal information, the impermanency of the forms in which that information was stored and the distance that needed to be traversed and inconvenience suffered in procuring access (assuming that its existence was known). Other protections for privacy arose from the incompatibility of collections with available indexes and the effective undiscoverability of most personal data. These practical safeguards for individual privacy largely disappear in the digital age 20 . A vast amount of data, identified to the individual, can now be collated by the determined investigator. The individual then assumes a virtual existence which lives in cyberspace instead of what is sometimes described as "meat space" 21 . The individual takes on a digital persona made up of a collection of otherwise unconnected and previously unconnectable data.

 

This vast quantity of personal information about the individual is likely to increase rather than decrease 22 . Access to this information is what occasions the fragility of privacy - a human attribute that has been steadily eroded over the past century 23 . To the extent that the individual has no control over, and perhaps no knowledge about, the mass of identifiable data that may be accumulated concerning him or her and to the extent that national law-makers, despite their best endeavours, enjoy only limited power effectively to protect the individual in the global web, privacy as a human right, is steadily undermined 24 .

 

It is not always appreciated by users of the web that without specific initiatives on their own part, their visits to particular websites can usually be resurrected: presenting a profile of their minds. These visits may illustrate the subjects they are interested in: their inclinations, political, social, sexual and otherwise 25 . An early indication of the potential of this form of surveillance to pry on the individual arose during the confirmation hearings in the United States Senate considering the nomination of Judge Robert Bork to the United States Supreme Court. A reporter retrieved the record of Judge Bork's video rentals as itemised by computer 26 . This is not a theoretical danger. Senior Petty Officer Timothy McVeigh, a naval officer stationed in Hawaii, was discharged from the United States Navy after he came under investigation following the search of his America On Line ("AOL") profile which included the word "gay" (homosexual). An acquaintance turned the profile over to Mr McVeigh's command. It treated it as a breach of the government's policy about the sexual orientation of service personnel, described as "Don't ask. Don't tell". Mr McVeigh did not tell, but AOL did 27 . The profile page was later removed from AOL. However, the damage to Mr McVeigh was done. In the long term, this wrong to him, and the attendant publicity, may contribute, by the exercise of free speech in the United States, to the abandonment of an unworkable government policy 28 . But in the meantime, Mr McVeigh has lost his privacy and his job. Users of the Internet, in the future, must be aware of their rights, risks and liabilities in this connection.

 

The capacity to check on visits to websites connected with child pornography, racist propaganda (eg, in Germany, National Socialism) and terrorism may be justified in social terms by the officials involved. But it does introduce controls upon what adults can look at, read and think about in the privacy of their own homes. This has a potential for expansion in ways which may threaten fundamental rights 29 . One of the particular dangers of data profiling is the human tendency to assume that because information comes out of an automated system, it must be true. Data profiles have a potential to magnify and reproduce human error 30 . There are many studies of the mistakes which can occur. The brother who once paid a defaulting sibling's rent but found himself black-listed as an unreliable tenant. The network user whose website is used to make a visit to a child pornography website or to download child pornography whilst the user is away.

 

The damage that can be done through defamation on the Internet is illustrated by a recent case in Western Australia. A message from an anthropologist appeared on the World Wide Computer Network Bulletin Board defending a university decision not to grant academic tenure to the plaintiff. The message mentioned an accusation of sexual misconduct which thereupon became available to approximately 23,000 academics and students, within the relevant speciality, having regular access to the bulletin board. Defamation was found and damages awarded 31 .

 

It is simply not true to say that the Internet is a law-free zone. Much local law applies to the activities occurring therein. But it is true to say that there is no global authority which controls the Internet. There is no uniform global regime to regulate and enforce standards 32 . To some extent the absence of a controlling and enforceable law promotes free expression, the communication of ideas and notions of individual liberty which are themselves important human rights. But such values are not the only human rights, as a glance at the Universal Declaration and its progeny of international law demonstrates. There are other fundamental human rights which sometimes compete, or conflict, with the right of free expression. Thus the right to privacy and to reputation and honour, and the confidentiality of communications must also be protected 33 . In the world of the Internet, technological capacity tends to favour the spread of information. The protection of competing values is decidedly weak.

 

Some of the information so freely circulating is false, misleading, taken out of context, outdated or unduly intrusive into the privacy of the individual, including an individual in public life 34 . Unless the individual affected has knowledge, or becomes aware, of the use being made of access to a conglomerate data profile, decisions may be reached on the footing that the data profile is correct, up to date and accurate in the picture which it presents of the data subject. This may be woefully false and unfair. But at the moment there is no really effective international regime (or even, in most countries, national law) to provide legally enforceable means of ensuring awareness, providing avenues of correction and facilities for redress.

 

Many of these problems are the same as those which were exposed by the OECD Expert Group twenty years ago. With the web have come additional problems. Because of the growing use of information systems by business and government, and because these are connected to the Internet, many transactions by individuals in every country will now be inter-connected and potentially examinable. This will afford means of distributing data about the individual to remote places and, often, to persons or organisations with which the individual may have no other connection 35 . The advent of search engines, robots, wanderers and Internet indexes present a new dimension to the isolation of personally identifiable data profiles. The extensive indexes of Internet sites such as Yahoo 36 and the launch in December 1995 of the Altavista search engine 37 (with the subsequent proliferation of e-mail, telephone, address and Usenet directories) change forever the personal profile potential. In his essay "Private Lies" 38 , John Hilvert describes Altavista :

 

"[It] was introduced as a free service back in December [1995] to show [Digital Equipment Corporation's] ability to handle the Internet, no matter how it scaled. ... [It] gobbles and disgorges in a very accessible way the entire catalogue of some 22 million web pages (12 billion words) and about two months of the content of 15,000 news groups. It handles 5 million search requests a day. Impressed with Altavista's remarkable speed. [The subject tried Altavista on the news groups and was sickened. 'What I found ... using my name or e-mail address as search parameters, was a copy of almost every post I've made to Newsnet news groups since the first week in January. ... That includes my posts to these two news groups, and all rejoinders from anyone here who included my name in his or her reply. Make out of that what you wish. My reaction to it is somewhere between disgust and fury. 'What I do not expect is that the news group clubhouse is bugged and that what is said there, by any of us, will be recorded and made available to any person on the Internet, for whatever reason persons might have'. The irony of this is: I came across [this] ... using the Altavista search engine."

 

Users commonly think that, because they do not enter their names or other details to gain access to web pages, this means that there is a high degree of privacy in their use of the Internet, ie that it is virtually anonymous. However with most web browsing software, such as Netscape and Microsoft Explorer, any request to a web site discloses the network identity of the machine used to access the web, the web page immediately previously accessed together with related "cookies", such as information stored by the web server on the computers of users who have accessed it, the list of previously accessed web pages or transactional information generated while accessing those web pages 39 . If this does not cause anxiety about the potential loss of privacy of Internet users, nothing will.

 

Of course, this is not a reason, Canute like, to hold up the hand against progress. On current trends we can scarcely prevent the rapid continuing growth in Internet users. But it does present a challenge to those who would defend fundamental human rights (including privacy) and those who realise the false, distorted, damaging, hurtful and intrusive information that can be compiled about an individual based upon data received from a multitude of digital sources. The point I make is that web crawlers, spiders, robots and trawlers introduce a new dimension to the info-privacy debate. They also challenge the applicability, in today's technology, of some of the OECD Guidelines prepared in the context of the technology of an earlier age, when such intense dataveillance was not foreseen 40 .

 

CHALLENGES TO DEMOCRATIC GOVERNANCE

 

In addition to the foregoing concerns a deeper malaise must be addressed. It relates to the capacity of presently existing lawmaking institutions to respond adequately to the problems which the new technology presents. Privacy is only one attribute of the Internet in which challenges arise for established values. Organised crime, terrorism, infringement of intellectual property rights, unconsensual or under-age infiltration of pornography are some of the other problems examined in the literature 41 . So are the implications of the Internet for the integrity of financial markets, for tax avoidance and tax havens 42 . Equally controversial is the impact of the Internet upon cultural sovereignty and diversity 43 which is of such concern to societies struggling to preserve and defend their language, religious or spiritual values, moral norms and distinct social diversity 44 . In striking down the censorship provisions of the Communications Decency Act of the United States 45 , the Supreme Court of that country itself recognised, that the practical consequence of its decision would reach far beyond the borders of the United States of America 46 :

 

"Once the provider posted its content on the Internet it could not prevent that content from entering any community. Thus, 'when the UCR / California Museum of Photography posts to its website nudes by Edward Weston and Robert Mapplethorpe to announce that its new exhibit would travel to Baltimore and New York City those images are available not only in Los Angeles, Baltimore and New York City but also in Cincinnati, Mobile or Beijing - wherever Internet users live. Similarly, the safe sex instructions that 'Critical Path' posts to its Web site written in street language so that the teenager receiver can understand them, are available not just in Philadelphia, but also in Provo and Prague".

 

Each one of us is, in a sense, affected in this way by decisions made upon the First Amendment to the United States Constitution. Earlier that national law, and its domestic interpretations, effectively revolutionised the worldwide access to adult sexual material in print and then in film, video and digital form. Many, including people far from the United States, will defend this development as an extension of the fundamental human right of free expression, as a beneficial response to sexual repression and as a defence to the rights of adults to enjoy, in private, that attribute of privacy which is connected with their sexuality. Some will also defend the rights of children, even as against the wishes of their parents, to receive safe sex messages which may protect their lives from the spread of HIV/AIDS and other venereal diseases. However, the United States Supreme Court recognised the legitimacy of concerns to protect underaged users of the web from access to inappropriate Internet sites contrary to the wishes of their parents 47 . The judges put their faith in effective parental supervision and in future technological developments which will limit access to, or block screening of, sexually explicit images.

 

Not all societies, and certainly not all governments, necessarily share the social values reflected in the United States court decisions. In a number of countries attempts have already been made by law to control the Internet 48 . A draft law in Thailand, for example, purports to prohibit dissemination through the Internet of information that is against "public peace and order and may lead to disunity of the nation or deterioration of international relationships"; "immoral information"; "information disparaging religion" or "highly respected persons" and "inappropriate information" concerning the King of Thailand, the Thai Royal Family and also "Heads of State of friendly foreign countries" 49 . This law was roundly criticised when it was published in January 1998, on the ground the last provision would create criminal offences for disseminating sexual information concerning President Clinton of the United States. The subsequent publicity given to allegations against the President, and its dominance of much of the global news media, demonstrated once again the difficulty (and possibly undesirability) of censoring the international flow of data of this kind.

 

Another illustration lies in the efforts of the British Government to prohibit publication of information and commentary which might endanger the fair trial of Mrs Rosemary West. She was accused of involvement in notorious serial killings. Such efforts might have been effective in the traditional news media. But they were wholly ineffective in the Internet 50 . The earlier attempts of that Government to suppress the publication of the book Spycatcher by Mr Peter Wright failed in the courts of several countries outside the United Kingdom 51 . It was not even attempted in the United States of America. The case illustrated the effective powerlessness of most national laws to enforce, in a truly effective way, local norms and values affecting global information.

 

To these problems must be added the dangers of combining control of information sources with political power. It was the connection which the then Prime Minister of Italy, Mr Berlusconi, had media outlets in that country that inspired Umberto Eco to declare, adapting Montesquieu, "Information ... is a fourth power ... It should remain separate" 52 . The difficulties of adjusting to global sensitivities about political criticism or moral sensibilities about sexual matters can be seen in Mr Rupert Murdoch's decision to withdraw the BBC World News Service from the Star network beamed by satellite to China. It can also be seen in the current prosecution which his corporation faces in India for alleged infringement of that country's obscenity laws. Governments and legislatures are not wholly powerless in the face of the Internet and global media. But the force of the technology (and the vast audiences which it gathers up) suggest that common global standards will tend, in time, to swamp local susceptibilities. At least in the case of most countries, there will be little which they can do to influence the information flow except to enact laws enforceable in their courts in the comparatively rare instances that they catch those who offend against such laws within their jurisdiction.

 

Some will say that this diminution in the incapacity of national law-makers to respond effectively to the challenge of the Internet is nothing more than an illustration of globalisation which technology more generally renders irreversible and inevitable. The contribution of the Internet to free expression, democratic practice and individual liberty cannot be denied. But in the interval between the receding power of national law and the lack of effective international law, lie certain dangers. As I have shown, they are dangers for those human rights which compete with the free flow of undigested data. But they are also dangers to stable social regulation on the part of those who see the impact of the new values which multimedia and the Internet bring and object to what they see 53 .

 

REASONS FOR OPTIMISM

 

Although the foregoing is reason enough to be concerned for the protection of human rights and the defence of democratic governance, it is not a reason for despair.

 

First, it is necessary to get the technology into perspective. Unlike the established media of radio and television, the Internet until recently was generally unsolicited 54 . Its form, unless downloaded, is impermanent. The user is not ordinarily passive: a prisoner captive to the ideas which others can impose 55 . Technology is being developed to facilitate the screening out of unwanted communications 56 . In terms of individual profiling, there are still some inhibitors of time, interest and self-restraint 57 . The development of "cyber manners" may be noted. Those who try to jam the e-mail of others with unwanted personal or other information ("spamming") may find themselves the targets of retaliation by those who object to such conduct 58 .

 

In recognition of the widespread concern about trawling of the Internet by robots, the right to opt out may be offered 59 . The dangers have also brought forth attempts to build Internet standards which will protect values such as privacy. Thus, in mid-1996 a coalition of concerned users formed the Global Internet Liberty Campaign 60 .

 

Defenders of the Internet point to the common social functions of the values which free speech and privacy ultimately defend, namely individual self-determination and self-fulfilment 61 . Whilst excessive data, or incorrect, outdated or misleading data may sometimes plague the individual, these misfortunes must be weighed against the aggregate value to freedom of such a massive outflow of data, so readily available to so many. No technological revolution, we are reminded, has ever occurred without some costs 62 . So rapid has been the advance of the web that it is unsurprising that a consensus is still being developed on the rules which should govern its use. Meanwhile, technical solutions are being explored which will address some of the problems identified 63 .

 

Laws on privacy, computer matching, surveillance and interception of telecommunications may (depending on their terms) already give some protection for certain fundamental rights. Regional bodies, such as the Commission of the European Union, have attempted to uphold privacy principles by limiting the transfer of personal data to countries (notably the United States) which do not offer comprehensive and effective national laws for the protection of privacy 64 . The effectiveness of such rules is open to question given the technological developments in the Internet and the economic power of those countries which still fall outside the network of enforceable privacy laws.

 

WHAT IS TO BE DONE ?

 

The result of this review is that the extraordinary development of informatics continues to present puzzles and challenges both to the international community and to the law-making institutions of the nation states which make it up. This was recognised in the past by the formulation of broad principles recommended to the members of the international community. It was hoped that these principles would influence both domestic law and practice. To some extent that hope has been realised. But the basic problem remains. Technology rushes ahead. The slow moving, disparate and only partly effective laws of nation states lag seriously behind.

 

A number of things can be done:

 

1. Nation states need to review their applicable laws and policies to adapt them to the new technology. Thus, in the United States a constitutional amendment has even been proposed to update some of the present guarantees and to permit courts to fashion new principles in harmony with the new technology and new values 65 . In Australia, in the space of a year or two, three discussion papers have been produced by government bodies. There is currently a Senate inquiry on self-regulation in the information and communications industries 66 . It is highly desirable that in every country legislators, governments, academics and the community generally should be debating the implications of the new technology, including the Internet. Such debates need to be supplemented by international initiatives which seek to devise principles as global as the technology itself. Otherwise, we will persist with a patchwork quilt of regulation of variable and dubious effectiveness 67 .

 

2. The development of "cyber manners", of Internet standards and the initiatives of bodies such as the Global Internet Liberty Campaign 68 , as well as domestic initiatives to speak up for endangered rights such as privacy 69 , deserve support. It is only by alerting the community, including Internet users, about to the potential of the technology to erode fundamental values that a response will be elicited which effectively protects those values.

 

3. There is an urgent need, in the light of technological change and the enhanced capacity of the Internet, for a review to be conducted of the information privacy principles developed by the OECD twenty years ago 70 . There are now serious gaps in those principles. Informed writers are already suggesting that new privacy principles are needed, such as:

 

A right not to be indexed - if a "rogue" robot indexer ignores existing or new contemporary standards which exclude indexing. A right to encrypt personal communications effectively 71 .

 

A right to fair treatment in public key infrastructures, so that no person is unfairly excluded in a way that would prejudice that person's ability to protect their privacy. A right to human checking of adverse automated decisions and a right to understand such decisions 72 .

 

A right, going beyond the aspiration of the OECD openness principle, of disclosure of the collections to which others will have access and which affect the projection of the profile of the individual concerned 73 .

 

4. A common theme of many of the proposed revisions of the OECD Privacy Guidelines is the need to render "data collection practices ... fully visible to the individual ... Any feature which results in the collection of personally identifiable information should be made known prior to operation and ... the individual should retain the ability to disengage the feature if he or she so chooses" 74 . Whilst some observers would doubtless contest such an absolute statement of the right of disengagement (and whilst others might question the marginal utility of undemanded notification of all identifiable information about an individual without any initiative on the part of that individual) clearly the openness principle of the OECD Guidelines is one of the weakest. The advent and potential of the Internet requires that there be new attention to it 75 .

 

5. The role of national governments as the defenders of privacy and of fundamental rights also needs careful consideration, given the past record of many of such governments as intruders into such fundamental rights. This, together with commercial concerns, provide the explanation for the heavy resistance to the Clipper Chip proposed by the United States Government in 1993. That proposal had the ostensible purpose of allowing government to override encryption so as to protect society from "gangsters, terrorists and drug-users" 76 . The first two words are loaded with perjorative values. The third, at least, now enlivens a legitimate international debate concerning the global strategy necessary to respond effectively to the drug epidemic. Whilst society needs to be shielded from clearly antisocial conduct, there are strong arguments for permitting, and protecting, the anonymity of most website visits 77 and providing "dungeons" and "chat rooms" in the web where people can communicate without fear that their interests, attitudes, beliefs and concerns will be monitored either by the public or the private sectors 78 .

 

6. One feature of Internet reporting is the intensification of the competition for getting the "news" first. This puts great pressure upon journalistic standards. All too often, it diminishes the observance of best practice: with the checking of sources and the consideration of values which compete with the repetition of unattributed unsubstantiated rumour, gossip and salacious innuendo. The kind of reporting which has lately affected public personalities such as Diana, Princess of Wales, and President Clinton, in respect of their private lives is, in part, a product of the new technology. No public figure is entitled to protection in relation to aspects of private life which may have relevance to public duties. But unless public figures can enjoy a private zone where their lawful family, sexual, health and other data belongs to them and is respected, the result will be a serious erosion of the quality of persons offering to serve. Few people will be willing to accept the entire sacrifice of their human dignity on the altar of global entertainment. Alternatively, the institutions of government and authority will be repeatedly and seriously damaged, leaving little in their place save for the massive flow of salacious personal gossip. There may be nothing much that can be done to respond to this problem in the age of the Internet. But problem it surely is.

 

A second generation of information privacy principles, in harmony with the development of the Internet, should be drawn up. The pervasive spread of the World Wide Web makes it imperative that, this time, countries outside the developed world should be involved in the formulation of applicable guidelines so that their concerns and values may be reflected. Fundamental human rights belong to all the peoples of the earth. The Internet has that in common. The Internet should develop in a way respectful to fundamental human rights and democratic governance. Its expansion should reflect global values and human diversity. This is a mighty challenge. Yet the Internet was conceived in the minds of human beings. It should be possible for humanity to devise just rules for its operation. UNESCO has an important rule to help humanity to develop the rules of the road 79 in terms defensive of the fundamental human rights which inspire UNESCO's mission.

 

1 President of the International Commission of Jurists. Justice of the High Court of Australia. One-time Chairman of the OECD Expert Group on the Protection of Privacy (1978-80) and on Security of Information Systems (1991-2).

 

2 OECD, Guidelines on Security of Information Systems , Paris, 1992.

 

3 OECD, Guidelines on the Protection of Privacy and Transborder Flows of Personal Data, Paris, 1980.

 

4 Preamble to the Charter of the United Nations. See Gruderidge L M and Hambro E, Charter of the United Nations: Commentary and Documents, second ed. (1949), 87.

 

5 Kirby M D, "Human Rights and Technology: A New Dilemma" (1988) 22 Uni British Columbia Law Review 123 at 127.

 

6 Kamenka E and Tay A E S, Teaching Human Rights, Aust National Commission for UNESCO, 1981, at p 2.

 

7 Brand, G "Human Rights and Scientific and Technological Development" (1971) 4 Human Rights Journal 351 at p 356.

 

8 United Nations, General Assembly Resolution 2450(XXIII), 19 December 1968.

 

9 Brand, above n 6, at p 356.

 

10 Kirby, above n 4, at p 130.

 

11 Ibid, 130-131.

 

12 Bond, J "Telecommunications is Dead, Long Live Networking" in I-Ways , Third Quarter 1997, at p 26.

 

13 Cook-Deegan, R, The Gene Wars, Norton, New York, 1994, 283ff; Kirby, M D, "The Human Genome Project - Promise and Problems' in 11 Journal of Contemporary Health Law and Policy 1 (1994). See now UNESCO, Universal Declaration on the Human Genome and Human Rights (1997) esp articles 7, 8 and 9.

 

14 Miller, R, in OECD Future Studies Information Base Highlight, No 14, May 1997: The Internet in Twenty Years: Cyberspace, the Next Frontier ?, OECD, Paris, 1997 at p 1.

 

15 Gibson, W, Neuromancer, cited Borella, M S, "Computer Privacy vs. First and Fourth Amendment Rights" (http://www.eff.org/pub/privacy/comp privacy fourth amend appear). As Miller notes (above n 13) cyberspace will eventually come to life on the Internet infrastructure as a range of information and services spanning, at least for a few analysts, almost all aspects of human experience.

 

16 Muller, above n 13.

 

17 Five hundred years ago Francis Bacon, writing in England about Gutenberg's printing press, commented on how the very way humans thinking would be rearranged, changed and as he put it "the appearance and state of the world" would be altered. Cf Harris, S cited in Williamson, S "Legal-Holes in the Information Super Highway", Victoria, Law Institute Journal, 1995 at p 1213.

 

18 "The Cyber Future: 92 Ways our Lives will Change by the Year 2025" in The Futurist, Vol 30 No 1 pp 27-42 (1996) abstracted in OECD, above n 13, at p 12.

 

19 Cavoukian, A and Tapscott, D Who Knows - Safeguarding your Privacy in a Networked World, Vintage, Canada, 1996; Balz, S D and Hance, O, "Privacy and the Internet: Intrusion, Surveillance and Personal Data" (1996) 10 International Review of Law, Computers and Technology No 2, at p 219.

 

20 Greenleaf, G, "Privacy and Cyberspace - An Ambiguous Relationship" in Privacy Law and Policy Reporter Vol 3 #5, August 1996 at p 88.

 

21 Ibid, at p 89.

 

22 Ibid, at p 88.

 

23 Wacks, R: "Privacy in Cyberspace: Personal Information, Free Speech and the Internet" in Birks, P (ed) Privacy and Loyalty, Oxford 1997 at p 93.

 

24 Wacks, above n 22, at p 110; Balz and Hance, above n 18, at p 220.

 

25 Balz and Hance, above n 18, at p 222. Most Internet users do not appreciate that an image of a site they may have visited many weeks earlier could be stored in their personal computer and could be easily viewed by another person having access to the computer.

 

26 Ibid, at p 228.

 

27 Human Rights Campaign: "Human Rights Campaign Learns Pentagon Postponing Expulsion of Sailor with "Gay" in is Profile" (http://www.hrc.org/feature.1/mcveigh.html). At the time of writing a judge has granted temporary relief to Mr McVeigh against dismissal.

 

28 cf Wacks, above n 22, at p 106 citing Emerson.

 

29 Wacks, above n 22, at pp 106-108; Balz and Hance, above n 18, at p 222 referring to Katz v United States 389 US 347 at 351 (1967). See also Miller, T, "Law, Privacy and cyberspace" (1996) 1 Communications Law No 4 p 143 at p 145; Wright, T, "Law, Convergence and Communicative Values on the Net" in (1996) 7 Jl of Law and Info Science 54 at 65.

 

30 Miller, above n 28, at p 146.

 

31 Rhindos v Hardwick , unreported, Supreme Court of Western Australia, (Ipp J), 31 March 1994 noted in Hughes, G, "Nowhere to Hide? Privacy and the Internet" (1996) 29 Computers and the Law 21 at p 22; Todd, B, "From Village Dump to Superhighway: Internet and the Modern Law of Defamation" (1996) 1 Media and Arts Law Review (Aust), 34.

 

32 Miller, above n 28, at p 145.

 

33 Universal Declaration of Human Rights, Article 12; International Covenant on Civil and Political Rights, Article 17.1. See generally Perritt, H H and Lhulier, C J, "Information Access Rights Based on International Human Rights Law", 45 Buffalo Law Review 899 at 906ff (1997).

 

34 For a case involving the medical and political history of the former President of the French Republic, Mr François Mitterand, see Balz and Hance, above n 18, at pp 219-220.

 

35 Greenleaf, above n 19, at p 88.

 

36 http://www.yahoo.com.

 

37 http://www.altavista.digital.com.

 

38 Hilvert, J in Information Age, May 1996, pp 18-23 cited Greenleaf above n 19 at pp 89-90.

 

39 Ibid, pp 91-92. Without spiders and robots it would be very difficult to find information on the web. These "devices" continually travel the millions of Internet servers on the web and index every significant word or phrase on each one. Web "masters" can prevent their sites from being so indexed. The awareness of the danger and the ways of meeting it has heightened in recent times. In 1994, an attempt was made to draft a Robot Exclusion Standard. See http://web.nexor.co.uk/mak/doc/robots/norobots.html.

 

40 Clarke, R. "Profiling and its Privacy Implications" Privacy Law and Policy Reporter, vol 1 #7, pp 128-129, Wacks, above n 22 at pp 93-97.

 

41 Wacks above n 22 at p 111; Downey, C "The High Price of a Cashless Society: Exchanging Privacy Rights for Digital Cash?" 14(2) John Marshall Journal of Computer and Information Law at p 303 (1996).

 

42 Wacks, above n 22, at p 111.

 

43 Davies, S "Strategies for Protecting Privacy in the New Information Structure" in Privacy Law and Policy Reporter Vol 2 #2, 1995 at p 23; I-Ways , Fourth Quarter, 1997 at p 9.

 

44 This feature alone invites the particular attention of UNESCO.

 

45 Reno v American Civil Liberties Union, 138 L Ed 2d 574 (1997) noted Computer Law and Security Report Vol 13 No 5 1997 at p 371.

 

46 Ibid, at p 372.

 

47 Ibid, at p 372.

 

48 China, Singapore and Germany have introduced laws. See Wacks, above n 22, at p 99.

 

49 Internet Promotion Bill 1998 (Thailand) (Draft 4) noted Bangkok Post, 12 January 1998 at pp 1-2.

 

50 Miller, T "Law, Privacy and Cyberspace" (1996) 1 (4) Communications Law 143 at p 145.

 

51 See eg Attorney General (UK) v Heinemann Publishers Australia Pty Ltd (1988) 165 Commonwealth Law Reports 30 (Australia).

 

52 Miller, above n 49, at p 146.

 

53 Cornish, above n 13, at p 12.

 

54 Wacks above n 22, at p 96. In recent times even this is changing with the emergence of so-called "push" technologies. These allow data to be transmitted to the user. Users can subscribe to specific areas of interest. The service provider will transmit any information generated on the web in any part of the world to the user desirous to receive it. This is a likely growth area of services.

 

55 Ibid, at p 102.

 

56 Ibid, at p 111.

 

57 Clarke above n 39, at p 129.

 

58 Balz and Hance, above n 18, at p 222.

 

59 Greenleaf, above n 19, at 91.

 

60 Greenleaf, G "Privacy Principles - Irrelevant to Cyberspace?" Privacy Law and Policy Reporter, Vol 3 #6 (1996) 114 at p 119.

 

61 Wacks, above n 22, at p 103.

 

62 Leonard, P, "City Ethics", Issue No 21, Spring 1995 (Sydney) at p 1.

 

63 Miller, above n 49 at p 147.

 

64 Greenleaf, above n 19, at p 88; I-Ways 4th Quarter, 1997 at p 40. The same is now happening in relation to the application of the European Union's Data Directive (Directive 95/46/EC) to Australia. See Greenleaf, G, "European Commission tests adequacy of our privacy laws" in Privacy Law and Policy Reporter, Vol 4 #8 January 1998 at p 140 and Lau, S, "Observance of the OECD Guidelines and the EU Directive in Asia" in Privacy Law and Policy Reporter, vol 4 #8 at p 145.

 

65 See Laurence Tribe's suggestion noted Wacks, above n 22, a p 99.

 

66 The three initiatives of the Australian Government are explained in Hughes, T "Regulation of the 'Net'" in Australian Law Reform Commission, Reform Issue 71, 1997, 23 at 24. They concern privacy protection, copyright reform and the regulatory framework of online services. Subsequently the Australian Government withdrew an electoral commitment to enact privacy legislation for the private sector. See Davies, S "Privacy Law - Australia" in Computer Law and Security Report, Vol 16 No 6 (1997), 429. The Government of the Australian State of Victoria has announced that it is drafting legislation to place all legislation on line. Cf Australian Financial Review, 24 October 1997 at 27. The Australian Senate Select Committee on Information Technology is conducting an inquiry on self-regulation in the information and communications industries. It has issued an inquiry information booklet (November 1997).

 

67 Greenleaf, above n 59, at pp 118-119. The European Union has proposed a process that could lead to an "International Communications Charter" by the end of 1999. See I-Ways, First Quarter 1998 and <eif@bxl.dg13.cec.be>.

 

68 Ibid, at p 119.

 

69 In Australia, the Australian Privacy Charter Council is a non-governmental organisation established to promote the protection of privacy. It has issued a Privacy Charter. See (1995) 2 Privacy Law and Policy Reporter 44.

 

70 Greenleaf, above n 59, at pp 115-118.

 

71 See OECD, Guidelines for Cryptography Policy, 27 March 1997 which include a set of eight principles relevant to this discussion. Principle 2 relates to users' rights to choose cryptographic methods. Principle 5 relates to the individual's rights to privacy including secrecy of communications and protection of personal data. OECD Doc:C(97) 62/FINAL. Cf Adams, J "Encryption - The Next Big Thing?" Computers and Law, Feb 1998, 39-40.

 

72 Ibid, at p 118.

 

73 Clarke, above n 39, at p 129.

 

74 Rotenberg, M quoted in Hilvert, J. See Greenleaf, above n 19, at p 92. cf Rotenberg, M "Privacy and Protection - A US Perspective: Data Protection in the United States - A Rising Tide?" in Computer Law and Security Report Vol 14 No 1 1998 at pp 38-40.

 

75 Davies, above n 42, at p 38. In Australia, the federal Privacy Commission recently issued new National Principles for the Fair Handling of Personal Information which include an anonymity principle.

 

76 Wacks, above n 22, at p 107.

 

77 Ibid, at p 100.

 

78 Ibid, at p 98.

 

79 Phillips, B (Canadian Federal Privacy Commissioner) cited in France, E "Can data protection survive in Cyberspace?" Computers & Law, July 1997, v 8, issue 2, 20 at 24.