1. Introduction
New Information Technologies 1 have been rapidly expanding especially over the last 2 decades. They are used in a variety of fields, by public and private actors. Governments as well as private companies are relying on information technologies to store, transmit and process data and handle information.
That development has gained additional momentum during the COVID-19 pandemic, with information technologies invading/becoming inherent to all fields of life, including work, education or governmental services especially as regards public health. So, information technologies have shown their potential especially during the COVID-19 pandemic. At the same time, their use poses considerable challenges for human rights protection, especially as regards the right to private life. This presentation will deal with these.
Outline: In the following, I will first turn to new informationi technologies as opportunity for human rights protection to then examine the challenges posed by these technologies for human rights. I finally argue that human rights provide for parameters and establish a framework for the use of information technologies in times of pandemic which may guide states in their application.
2. New Information technologies as opportunity for human rights protection
Let me first turn to information technologies as opportunity for human rights protection in times of pandemic. Indeed, the use of information technologies contributes to realise a variety of human rights.
On the one hand, information technologies may contribute to (indirectly) uphold the rights to health and life. For example, they facilitate the tracking of infected persons and their contacts, which is made faster and more efficient. Thereby, infection chains can be prevented and clusters reduced: The number of Covid-19 infections and, as a result, deaths is likely to decrease. Equally beneficial is – more indirectly though – technologies’ contribution to fostering scientific progress. The development of new medicines and vaccines contributes to uphold the rights to health and life.
Information technologies, by facilitating access to information in relation to the pandemic, additionally service the right to freedom of expression. More concretely, new information technologies contribute to one of the pandemic-related obligations of government as stated by the Office of the UN High Commissioner for Human Rights, namely to:
"Ensure that relevant and reliable information on the crisis including gender specific and responsive information reaches all people, without exception. Make information available in readily understandable formats and languages, adapt information for people with specific needs, including people with disabilities, and ensure that it reaches those with limited or no ability to read.” 2
Indeed, the Office of the High Commissioner particularly draws attention to the need facilitate access to the internet in the context of the pandemic. 3 Thus, information technologies more broadly contribute to opening civic space during the COVID-19 pandemic.
Moreover, the use of information technologies allows states to uphold the right to education, despite the imposition of contact restrictions that prevent in-person teaching. In these circumstances, online teaching and zoom sessions make it possible to continue with classes at all levels in distance mode: from primary schools to university education. Without these virtual options, the pandemic-related impact on the right to education would be much worse.
Similar considerations apply to the right to work and the possibility to work from home due to the use of new information technologies, as with the freedom of religion, which is furthered when the celebration of divine services and common prayers are enabled in the virtual space.
Finally, information technologies contribute to the realisation of the right to political participation in times of pandemic: internet voting from home (Estonia) make it possible to exercise the right to vote without the risk of infection of in-person voting in the polling station.
Therefore, the use of new information technologies significantly contributes to realise numerous human rights in times of pandemic.
3. Challenges posed to (international) human rights protection by new information technologies
At the same time, the use of new information technologies also poses considerable challenges to human rights protection in times of pandemic.
Particularly at stake is the right to private (and family) life. For example, the massive use of new information technologies to locate and monitor persons in quarantine facilitates interferences with (and – depending on the circumstances – violations of) the right to private and family life. The storage of personal data on a massive scale, enabled through the use of new technologies, eg for health-related reasons, likewise increases the risks of arbitrary interferes with privacy.
The enhanced risks of possible human rights violations, especially of the right to private (and family) life,4 through the use of new information technologies holds true especially in difficult times, as are pandemics, where states are required to interfere to a larger degree with human rights to protect the population against pandemic-related risks.
How to minimize these risks all while upholding the possible benefits of technological progress?
According parameters and safeguards seem necessary to guide the use of new information technologies. Indeed, human rights instruments and bodies provide for these.
4. A human rights framework for the use of new technologies in times of pandemic
International human rights establish a clear framework to protect human rights in times of pandemic. Indeed, to enjoy the benefits of new technologies all while upholding and protecting the right to private life, interferences must comply with strict conditions and according safeguards be established.
Let me first turn to the general conditions for interferences with human rights caused by the increased use of information technologies in times of pandemic, as established in applicable human rights instruments: These are, in case of the right to private (and family) life, , that interferences have to be provided for by (clear and accessible) laws; that they pursue a legitimate aim – here the protection of public health - and that they are proportional. (This is provided for, for instance, in Art 17 CCPR 5 , Art 8 ECHR 6 and the according case-law by the human rights monitoring bodies, the Human Rights Committee and the European Court of Human Rights).
This implies, for example, according to the Office of the High Commissioner that “surveillance measures should be the least intrusive means available to meet public health needs, and as such include clear sunset clauses.” The latter also held that “Individual surveillance, contact tracing and individual movement tracking should be tightly regulated, with data being used only as strictly necessary to address the public health emergency.” Likewise, independent oversight bodies must be established for effective review of the respective measures.
As regards storage of health-related data, according to the Office of the High Commissioner, storage systems should adhere to established international data protection principles, including that only the data required to manage the COVID-19 pandemic are processed and that the concerned individuals are informed about the use of their data. Likewise, accountability must be ensured eg through mechanisms to rectify inaccurate data or through the provision of remedies for data breaches or other misuses. 7
Indeed, on a general level, effective remedies must be established, in case somebody considers himself negatively affected in his rights by the use of new information technologies. 8 Avenues to complain about alleged violations of human rights must be independent and impartial. 9
Thus, human rights provide for an adequate framework to guide states/governments in the use of new information technologies in times of pandemic.
5. Concluding appreciation
To conclude: While new information technologies have been crucial during the COVID-19 pandemic and contributed to facilitating and realising numerous rights, the pandemic has also shown the challenges to effective human rights protection posed by the use of new technologies. It appears thus crucial that the use of new information technologies is subject to the parameters and safeguards imposed by international human rights law. It is only under condition that the use of new technologies complies with the parameters imposed by human-rights law that these technologies will deploy their full potential at the service of human rights protection.
*About the author: Christina Binder ,Vienna University, Munich Germany Federal Military University European Law, International Law and Comparison Professor.
1 See the definition of information technology as “application of information processing involving both computer hardware and software that deals with the storage, retrieval, sharing, and use of health-care information, data, and knowledge for communication and decision making”. “Information technology (IT) covers any form of technology, that is, any equipment or technique used by a company, institution, or any other organization which handles information. It incorporates computing, telecommunication technologies, and includes consumer electronics and broadcasting as it is getting more and more digitized. Spearheaded by the computer, the decades since the mid-1960s have been characterized by an extreme development. Since the late 1970s, cheap microelectronics have permitted the diffusion of these technologies into almost all aspects of daily life and have furthermore almost inextricably cross-fertilized and intermingled their multiple application branches, which include industry, commerce, administration, education, medicine, scientific and professional work, entertainment, and domestic
work.” (M. Grauer, in International Encyclopedia of the Social & Behavioral Sciences , 2001). (Information Technology - an overview | ScienceDirect Topics).
2 UNOHCHR, Civic Spance and COVID-19: Guidance, 4 May 2020.
3 “Facilitate access to the internet. When other means of communications are restricted, online information is particularly crucial. Restrictions on access to the internet, including shutdowns, cannot be justified on public order or national security grounds. Whenever possible, States and other relevant actors should take measures to expand access to internet services for older persons, those living in poverty and most at risk, women and girls, and marginalized communities.” (ibid)
4 Likewise other rights, eg the right to vote/secrecy of the vote are in danger of being encroached upon when persons vote outside the safe/protected place of the polling station.
5 Article 17 CCPR: 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.
6 ARTICLE 8 ECHR: “Right to respect for private and family life 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
7 See the Office of the UNHCHR: “Ensure adequate safeguards and accountability: Ensure accountability by establishing transparent mechanisms for rectifying inaccurate data; for remedy for data breaches or other misuses, and prohibiting data processed in the pandemic from being used by other governmental agencies unless absolutely necessary.”
8 Art 2 para 3 ICCPR; Art 13 ECHR.
9 Grabenwarter/Pabel, Europaische Menschenrechtskonvention, 6th ed., 2016, p 585.
