A Human Right to Informational Self-determination: What it is and why it matters for Digital Human Rights

On 9 October 2025, the Inter-American Fee on Human Rights (‘Inter-American Fee’) revealed a thematic report titled “The Influence of Digital Surveillance on Freedom of Expression within the Americas”. Amongst different issues, the report known as on member states to offer impact to a brand new human proper – the “proper to informational self-determination”. The report comes two years after the Inter-American Courtroom of Human Rights (‘Inter-American Courtroom’) acknowledged the suitable to informational self-determination as an autonomous proper inside the Inter-American system. It did so in a landmark ruling – the case of Members of the José Alvear Restrepo Legal professionals’ Collective v Colombia (‘CAJAR case’) – handed down on 18 October 2023.

As we elaborate under, the Inter-American Courtroom developed the suitable to informational self-determination without any consideration deriving from different rights enumerated within the American Conference on Human Rights: The correct to privateness (Article 11), the suitable to entry data and freedom of expression (Article 13) and the suitable to judicial safety (Article 25). In recognizing a brand new proper, the judgment marks an inflection level which adjustments the way in which through which establishments within the Inter-American human rights system perceive how surveillance impacts human rights, transferring past the normal deal with privateness and freedom of expression and opting as a substitute to develop a brand new digital human proper.

The popularity of the suitable to informational self-determination by two main human rights our bodies in America, alongside its acknowledgment by the European Courtroom of Human Rights, marks a major evolution in regional human rights jurisprudence and a promising growth for digital human rights globally. This contribution first examines the normative content material of the suitable to informational self-determination, explores why recognition of recent digital human rights issues, after which highlights its doctrinal and sensible challenges.

The correct to informational self-determination and its normative contents 

Ontologically, the suitable to informational self-determination refers to a person’s capability to find out, in precept, when, how, and to what extent their private knowledge could also be disclosed, accessed, processed, and utilized by public or non-public actors (see right here, right here and right here). Within the digital surveillance context, the place knowledge assortment is very large, fixed, ubiquitous, and infrequently opaque in nature, this proper features as a important private liberty and human dignity safeguard, designed to make sure that people retain significant management over their private knowledge (see right here ¶177).

An early conceptualization of the suitable to informational self-determination could be traced again to Westin’s seminal work, the place he outlined privateness as “the declare of people (…) to find out for themselves when, how, and to what extent details about them is communicated to others”. The notion later gained formal judicial recognition within the well-known 1983 Federal Census Act determination of the Federal Constitutional Courtroom of Germany, which first articulated informational self-determination as a person proper grounded in private autonomy and human dignity (see right here, right here and right here).

Over time, this proper has come to occupy a central place inside European knowledge safety legislation, essentially reshaping the up to date understanding of privateness (see right here, right here and right here). 

This evolution in European knowledge safety legislation has (in)immediately influenced different regional human rights methods, together with the Inter-American system. This was acknowledged each within the CAJAR case majority determination itself (¶589) and within the Separate Opinion of Choose Rodrigo Mudrovitsch (¶78), who noticed that “[t]he Courtroom has acknowledged the suitable to informational self-determination within the CAJAR case, a choice whose deep roots lie within the landmark 1983 determination by the German Constitutional Courtroom, the place the idea was first coined”.

On substance, the CAJAR case helps us conceptualize the contours of the brand new digital human proper to informational self-determination. The case concerned allegations that Colombian intelligence spied on members of the José Alvear Restrepo Legal professionals’ Collective (‘CAJAR’), gathering and misusing their private data—a few of which was reportedly shared with unlawful armed teams (¶1). The Inter-American Courtroom dominated that people whose knowledge are held in public recordsdata will need to have their freedom of self-determination assured, contemplating the next particular entitlements (¶ 585):

(i) the suitable to know what knowledge are saved by public authorities, together with their supply, objective, retention interval, sharing practices and general situations of processing;

(ii) proper to demand that their knowledge be rectified, amended, or up to date if the knowledge is inaccurate, incomplete or outdated;

(iii) the suitable to demand that the info be destroyed, erased or suppressed in the event that they have been unlawfully collected or their retention not justified, offered this doesn’t infringe different protected rights;

(iv) the suitable to object to knowledge processing when it causes hurt or is in any other case incompatible with relevant rules; and

(v) the suitable to obtain private knowledge in a structured, generally used, machine-readable format and to request their switch with out undue interference.

Contemplating these entitlements, the Inter-American Courtroom made an avant-garde holding by saying that (¶ 586): 

The conjunction of those elements contains an autonomous human proper: the suitable to informational self-determination, acknowledged in numerous of the area’s authorized methods and guarded by the American Conference, particularly below the rights set forth in Articles 11(the suitable to privateness) and 13 (freedom of expression), and as a dimension of judicial safety, a proper assured below Article 25 ( emphasis added).

Which means that the suitable to informational self-determination derives not solely from Article 11 of the American Conference, prohibiting arbitrary or abusive interference with non-public life and guaranteeing authorized safety in opposition to such interference, however can also be associated to the liberty to hunt, and obtain  data below Article 13 , which the Courtroom has interpreted as defending the suitable to request entry to State-held knowledge and as imposing a corresponding constructive obligation on public authorities to supply it. Moreover, the suitable to an efficient treatment below Article 25 requires people to have easy, immediate, and efficient recourse to guard their basic rights. 

The emphasis given by the Courtroom to the inter-relations between informational self-determination and different human rights resembles the strategy taken by the Worldwide Courtroom of Justice in the direction of the popularity of a brand new proper to wash, wholesome and sustainable atmosphere within the current Local weather Change Advisory Opinion (¶393). 

Why does this normative growth matter for digital human rights?

The rising recognition of a standalone proper to informational self-determination is critical in various respects. First, it represents an try and empower people who’re potential victims of illegal digital surveillance. The in depth use of digital surveillance applied sciences poses a most critical risk to the suitable to privateness, but in addition to a bunch of different civil and political rights which safeguard private liberty, human dignity and particular person autonomy. The Courtroom’s evaluation in CAJAR demonstrates that, in view of potential abuse by states of the ability to gather and retain private data people will need to have efficient means to withstand such abuse by acquiring data concerning the knowledge held and the style by which it was obtained, in addition to by exercising efficient management over it (requesting  updating, rectification or modification of knowledge and, the place doable, requesting deletion). Within the absence of such empowering mechanisms, surveillance operations are more likely to create a everlasting state of rights violation (¶580). 

Second, it represents an acknowledgment of the risk posed by digital surveillance to foundational human rights rules – particularly human dignity, particular person autonomy and private liberty. Because the Courtroom emphasised, the American Conference “incorporates a common clause for the safety of human dignity, which locations the person as each topic and finish of the authorized, political and social order, and supplies content material to each the notion of particular person autonomy and the precept that ensures that every one individuals have to be handled as equals” (¶567). In line with the Courtroom, private autonomy encompasses “the potential of each human being to self-determine and freely select the choices and circumstances that give which means to their existence, in line with their very own selections and convictions” (¶¶569-70). Informational self-determination is seen by the Courtroom as emanating from these foundational rules.

Third, the Courtroom’s judgment implicitly means that reliance on present human rights norms, for instance the suitable to privateness, is insufficient to completely deal with the speedy evolution of digital applied sciences and their influence on the enjoyment of human rights within the digital age. Discussing the inadequacy of making use of present norms to the web realm, Dror-Shpoliansky and Shany argued elsewhere that “[t]his notion of inadequacy seems to assist the event of recent digital human rights, liberated from the shadow of offline human rights, because the latter are ill-equipped to afford efficient safety of the total gamut of wants and pursuits of on-line customers” (p. 1257). 

Certainly, the flip by the Courtroom to a brand new digital human rights – a proper to informational self-determination – permits us to situate the judgment inside the analytical framework of the “Three Generations of Digital Human Rights” venture. This venture investigates the claims that the evolution of digital human rights proceeds in three phases: (i) the variation of offline rights to the web realm; (ii) the creation of recent digital rights; and (iii) the introduction of rights and obligations for digital actors (see right here, right here and right here). By alluding to various totally different human rights (¶589) and invoking human dignity, particular person autonomy and private liberty because the foundations for a proper to self-determination (¶569), the Courtroom seems to have accepted the proposition that an efficient response to the rising risk posed by state surveillance within the digital age justifies the creation of a brand new digital human proper, which can incorporate parts from the totally different normative sources it’s constructed upon, and entail particular obligations relating to knowledge safety. 

Challenges forward

Whereas developments within the Inter-American human rights system present important assist for the event of a brand new digital human proper to data self-determination, it’s removed from sure whether or not such a proper would attain common acceptance anytime quickly. In reality, UN our bodies have expressed to this point reluctance to push within the course of recent digital human rights, preferring as a substitute to function inside a “normative equivalency” paradigm that strives to use offline rights to on-line areas (p. 1254). Such desire displays considerations about “rights inflation”, but in addition a priority concerning the difficulties of producing consensus at this geopolitical second. 

Whereas such considerations definitely have deserves, the strategy by the Inter-American Courtroom of developing a brand new digital human proper on the idea of present offline rights is compelling in our eyes. It presents the introduction of recent digital rights as a course of that’s evolutionary, not revolutionary, and as one other stage within the long-honoured custom of extrapolating particular human rights from extra common ones (e.g., the suitable to not be topic to enforced disappearance).    

Nonetheless, it stays to be seen how the suitable to informational self-determination develops in a digital period dominated by AI expertise and AI corporations. Certainly, in his separate opinion, Choose Mudrovitsch expressed considerations on this regard, noting that the usage of AI would additional improve the ability of surveillance authorities, permitting them to entry biometric knowledge captured, for instance, by facial recognition expertise and genetic databases (¶106-107).  

Conclusion 

Whereas the popularity of the suitable to informational self-determination by the Inter-American Courtroom and Fee is a milestone value celebrating within the designation of recent digital rights, it’s removed from the tip of the story. Different worldwide human rights our bodies ought to contemplate following swimsuit by expressly giving authorized impact to this rising proper. On this regard, the Inter-American Fee’s name for home implementation is especially noteworthy ¶ 285(6). 

Moreover, given the rising problem posed by digital applied sciences and AI methods, critical consideration must be given to extra complete regulation, together with the event of particular human rights norms, to make sure efficient safety of particular person rights on this sophisticated technological and institutional terrain. The correct to informational self-determination wants, in different phrases, to be complemented by different new digital and AI human rights. The current name by the Excessive Commissioner for Human Rights to outline rights for the digital age represents a proper step on this course.