CHAPTER 5: LEGAL CONSTRAINTS
2. Everyone has the right to the protection of the law against such
interference or attacks.”
The ICCPR was referred to in the recent report of Ben Emmerson QC: 5.91 below.
UN High Commissioner for Human Rights
5.87.
In December 2013, the General Assembly of the United Nations adopted Resolution
68/167 concerning the right to privacy in the digital age. It notes that “unlawful or
arbitrary surveillance and/or interception of communications, as well as unlawful or
arbitrary collection of personal data [are] highly intrusive acts [that] violate the rights
to privacy and to freedom of expression and may contradict the tenets of a democratic
society.” The Resolution calls on states to act in accordance with international law
and to establish effective oversight, to respect the right to privacy and to review their
current mechanisms of surveillance.
5.88.
The Resolution requested the UN High Commissioner for Human Rights, Ms
Navanethem Pillay, to submit a report on the protection and promotion of the right to
privacy. That Report, was published on 30 June 2014.103 Drawing on the work of the
Human Rights Committee, the Commissioner stated, in language familiar from the
European case law:
“Where there is a legitimate aim and appropriate safeguards are in place, a
State might be allowed to engage in quite intrusive surveillance; however, the
onus is on the Government to demonstrate that interference is both necessary
and proportionate to the specific risk being addressed.”
She went on to apply that reasoning to what she called mass or bulk surveillance
programmes, pointing out (para 25) that:
“... it will not be enough that the measures are targeted to find certain needles
in a haystack; the proper measure is the impact of the measures on the
haystack, relative to the harm threatened; namely, whether the measure is
necessary and proportionate.”
UN Special Rapporteur
5.89.
The UN Special Rapporteur on the promotion and protection of fundamental rights
and human freedoms while countering terrorism, Ben Emmerson QC, wrote about the
subject in his fourth annual report in September 2014.104 He stated that “the use of
mass surveillance technology effectively does away with the right to privacy of
communications on the Internet altogether”, and argued (at paras 12-14) that given
the scale of the interference with privacy, the corresponding public policy benefit must
be very substantial.
5.90.
He also suggested (at paras 42-43) that laws which distinguish between internal and
external communications, either by reference to physical location as in the UK or
103
104
The right to privacy in the digital age, (June 2014), A/HRC/37.
A/69/397.
93