The Necessity for Binding Human Rights Obligations for Private Actors in the Digital Age: A Submission to the UN Human Rights Council on New and Emerging Technologies

Abstract

Today’s new and emerging digital technologies pose unique and unprecedented challenges to human rights. These challenges are particularly acute because digital infrastructure – both material and virtual – tend to be both owned and coordinated not by public actors whose behaviour and policies are traditionally bound by human rights law, but by private actors. These challenges are further fortified by an unparalleled concentration of power in the hands of a few companies which have gained it by commodifying and exploiting our personal information. Existing efforts focused on voluntary ‘social and corporate responsibility’ and ethical obligations of tech and advertising companies are insufficient and incapable to tackle these challenges. The existing international human rights framework is not adequate to safeguard human rights in an era of rapid technological innovation because its obligations are limited to states, and not such private actors. Binding obligations for private actors under international human rights framework are needed to ensure protection of fundamental rights in the digital age for three main reasons: 1) to rectify an imbalance between hard legal commercial obligations and human rights soft law, 2) to ensure that individuals whose human rights have been affected can access an effective remedy, and 3) because private actors are themselves engaging in the balancing exercise around fundamental rights, an explicit recognition of their human rights obligations is crucial for the future development of access to justice in the digital age.