law

United Nations Regulations on the Protection of Personal Data

Article 12 of the UN Declaration of Human Rights states that ‘No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, or to attacks on his honour and reputation. Everyone has the right to be protected by law against such interference and encroachment.

Universal Declaration of Human Rights

Before proceeding to the regulation on the protection of personal data in the Declaration, a brief explanation about the Declaration will be correct in terms of understanding the importance of the regulation. The United Nations Organisation is an international institution established after the great destruction and suffering experienced by humanity in World War II, in order to prevent people from suffering the same damage again. When we look at the underlying purpose of the declaration issued by the UN, it is an opposition to the bad situations that emerged during the war and the violation of human rights. The preconditions for the 1948 Declaration are, on the one hand, the ‘barbarous acts’ of the past, i.e. the recent war and the horrible treatment of millions of victims, and, on the other hand, the longing for a world in which people will be free. Here, it is the enemy who has not done all these things and therefore does not want to do them. The Declaration expresses the desire to free man from inhuman treatment. The word ‘universal’ in the title of the Declaration, which is almost never found in other traditional declarations, is very important. In the Declaration, the disenfranchised - whether they are minorities such as social classes, groups, peoples, etc., or individuals - demand freedom and equality of rights for themselves, which implies a universal order. These claims are legitimised on the basis of universal natural law or, since the Enlightenment Since the Enlightenment, they are legitimised on the basis of a universal supra-positive foundation, be it universal natural law or, since the Enlightenment, human innate reason, including conscience.[1]

Article 12 of the UN Declaration of Human Rights contains a provision for the protection of personal privacy. Article 12 of the Declaration states that ‘No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, or to attacks on his honour and reputation. Everyone has the right to be protected by law against such interference and encroachment. It was decided at the meeting of the Council of Ministers dated 6/4/1949, upon the letter of the Ministry of Foreign Affairs dated 28/03/1949 and numbered 36084/122, that the Universal Declaration of Human Rights, which was adopted by resolution 217 (111)[2] dated 10/12/1948 at the 3rd Session of the General Assembly of the United Nations after its establishment, be published in the Official Gazette, and that it be read and interpreted in schools and other educational institutions after its publication, and that appropriate publications be made about this declaration on radio and newspapers. The Declaration was published in the Official Gazette dated 27.05.1949 and numbered 7217.

International Covenant on Civil and Political Rights

It is important to examine the conditions of the declaration adopted 18 years after the UN Universal Declaration of Human Rights and its status against the Declaration in order to understand the spirit of the regulation on the protection of personal data. In 1966, the Convention on Social, Economic and Cultural Rights and the Covenant on Civil and Political Rights were opened for signature and ratification by the United Nations Organisation. The Covenant on Social, Economic and Cultural Rights is understood and interpreted as the expression of socialist and communist ideology, while the Covenant on Civil and Political Rights is understood and interpreted as the expression of Western Liberal ideology. In 1966, the UN opened the Covenants for signature and their conditions differ from the Declaration. In the Covenants, all peoples have the right to self-determination. However, the Declaration had previously stated that ‘all human beings are born free and equal in dignity and rights’. The preamble to the 1966 Conventions states that ‘a person has duties and bears responsibilities towards other persons and towards the community of which he is a member’. [3]

Article 17 of the UN International Covenant on Civil and Political Rights states: ‘1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence; nor shall anyone be subjected to unlawful attacks on his honour or reputation. 2. Everyone has the right to the protection of the law against such interference or encroachment. The Republic of Turkey signed the said international Convention, which was opened for signature by the United Nations on 16 December 1966, on 15 August 2000 in New York and ratified it on 04.06.2003, and it entered into force upon its publication in the Official Gazette No. 25142 on 18.06.2003.

At its 32nd session in 1988, the UN Human Rights Committee interpreted the right to privacy in Article 17 as follows[4]. According to the article, no one shall be subjected to arbitrary or unlawful interference with his private life, family, home or correspondence; no one shall be subjected to unlawful attacks on his honour and reputation. According to the Committee, this right must be protected against all forms of interference and attack, whether by State authorities or by any natural person or legal entity. According to the article, the State party is under an obligation to prohibit interference with and attacks on this right and to adopt legislative and all other necessary measures aimed at protecting this right. The collection or storage of personal data by public authorities, private individuals or organisations in computers, databanks or similar devices should be subject to legal regulation. States must take effective measures to prevent information concerning a person's private life from falling into the hands of those who are not legally authorised to possess and use it, and to prevent such information from being used in a manner contrary to the purposes of the Convention. In order to ensure the most effective protection of the right to privacy, every individual has the right to know, if information concerning him or her is stored in personal files or databases, what kind of information it is and for what purpose. Furthermore, each individual should be able to find out which public authorities, private persons or organisations control or may control these files. In the event that such files contain inaccurate personal information or that such information has been unlawfully collected or used, each individual has the right to request correction or removal of the information [5].

UN Guiding Principles on Personal Data Processed on Computers dated 14 December 1990 and numbered 45/95

With the aforementioned regulation, the UN has determined the minimum principles that must be fulfilled in national legislation. These include the processing of personal data in accordance with the law and good faith, ensuring that the data is accurate and that the accuracy and currency of the data is checked at appropriate intervals, processing of data in accordance with the specific purpose and justified, processing for the purpose for which consent is given, collecting the amount appropriate for the purpose, preserving it within the time period appropriate for the purpose, data carriers can access personal data about themselves, learn how it is processed, request the deletion and correction of unnecessary unlawful and inaccurate data, no processing of data that would lead to unlawful or arbitrary discrimination, including information on racial or ethnic origin, colour, sex life, political opinions, religious, philosophical and other beliefs, as well as information on membership, except for the exception set out in the law, provided that it is expressly provided for in a law or equivalent regulation enacted according to the domestic legal system and with appropriate safeguards, data may be processed for the purposes of national security, public order, public health or public morals, the exceptions to the above-mentioned principles to be brought by the legal system should be regulated in accordance with the regulations in the Universal Declaration of Human Rights and the prohibition of discrimination in the protection of human rights, taking the necessary measures to protect personal data against loss and destruction of personal data by natural disaster or accident and taking the necessary security measures to prevent unauthorised access, fraudulent actions, etc., and each country should establish a control system to check whether the above-mentioned principles are implemented by its domestic law, that this supervision should be carried out by an independent and impartial authority, that criminal and other sanctions should be imposed in case of non-compliance with the above-mentioned principles, that each country should provide guarantees for the protection of personal data by legal regulations within each country in order to protect privacy in the transfer of data from one country to another country, that the above-mentioned principles should be applied, in the first instance, to all public and private computerised files and, by optional extension and subject to appropriate settings, to manual files [6].

An independent authority has been established for the supervision and control of the UN Guidelines by the member states. Guidelines are important in terms of establishing an independent impartial international body on this issue. However, since the UN Guidelines are not binding but advisory, they are not considered to have much impact. [7] The UN organisation, which currently has 193 members, is expected to be more effective in data protection [8]. The UN Organisation determined the Personal Data Protection and Privacy Principles to be applied to the personnel working within its own organisation on 11 October 2018. These regulations are listed in 10 articles and are similar to the principles mentioned above [9].