Reimagining international law of privacy in the digital age
AuthorDesta, Kinfemicheal Yilma
AffiliationMelbourne Law School
Document TypePhD thesis
Access StatusThis item is embargoed and will be available on 2021-11-05.
© 2019 Kinfemicheal Yilma Desta
This thesis examines the question of how international law should respond to the challenges of securing digital privacy. Driven mainly by the transnational nature of privacy threats involving private actors as well as States, calls are increasingly made for an ‘international’ privacy framework to meet these challenges. The thesis investigates such recurring calls from the perspective of two global privacy initiatives that posit a progressive vision for the right to privacy in the digital age. Using Internet Bill of Rights (IBRs) and the ongoing United Nations (UN) discourse on the ‘right to privacy in the digital age’ as case studies, it examines the role of emerging initiatives in reimagining current international law of privacy in the digital age. Scholarship investigating IBRs, the (data) privacy literature and the broader field of international law are yet to interrogate the role of, or situate, such initiatives in international law. Nor has international law’s role in addressing the ‘privacy problem’ in the digital environment been considered in the literature. In response to this lacuna, the thesis takes the novel approach of exploring the role of IBRs and the evolving UN privacy discourse in making international privacy law better-equipped in the digital age. The thesis begins by examining whether current international law of privacy is equipped to address the challenges presented by the digital age. It finds that because of historical antecedents, the normative and institutional structures of international privacy law are ill-equipped to address the ‘privacy problem’ in the digital age. The thesis then examines the role of IBRs and the UN Privacy discourse in making the international law of privacy better-equipped in the digital age. It demonstrates that the ‘freestanding’ and ‘contributory’ roles of these initiatives are negligible, but they possess a ‘catalytic’ role which may shape the normative and methodological directions of a more practical reform. Adopting a pragmatic approach, this thesis argues that addressing the privacy problem in the digital age requires reimagining the law along the direction charted in those initiatives but through an approach that is incremental, practical, multifaceted and programmatic. Mapped onto the overarching international human right to privacy framework and drawing upon global privacy initiatives, the thesis then proposes two layers of privacy law reform. It, first, presents the case for a soft law approach towards addressing normative gaps, and secondly, argues for a dialogical approach towards lessening institutional-structural gaps in international privacy law.
Keywordsinternational law of privacy; digital privacy; the right to privacy in the digital age; data privacy; data protection; international privacy law; Internet Bill of Rights; international soft law; United Nations' data privacy framework; a pragmatic approach to privacy law; internet rights and freedoms
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