The development of information technology has greatly changed the way in which we communicate with each other, whether at home, work or for leisure, thus enhancing freedom of expression and democratic participation. The evolution of Facebook, Twitter and Instagram are examples of how people communicate freely.
Technological developments have also made it possible for electronic surveillance and communications interception to be carried out on a large scale and with relative ease. I have experienced intrusion on my cellphone, and I am sure I am not alone.. The critical question is: Who is monitoring the monitors?
Edward Snowden has exposed how governments use modern technology to secretly collect and store massive amounts of data on the most intimate details of people’s lives worldwide. I submit that such practice threatens individual’s right to privacy, right to freedom of expression and association. It inhibits the freedoms that exist in a free and democratic society. Arbitrary digital surveillance also poses a threat to some sectors of society. For example, it may erode the fundamental principle of attorney/client relationship, impact investigative journalism, or the relationship between law enforcement officials and confidential informants.
The right to privacy
The right to privacy is not simply a right to be “left alone”, but rather an individual’s fundamental right to freely communicate with others in order to fulfil their personal development. The right to privacy is interlinked with the right to freedom of expression: the two are mutually dependent upon one another and both facilitate the ability of individuals to participate in free and democratic societies. The right to privacy protects an individual’s choice as to what to share and with whom.
How is a breach of this right assessed? International human rights law provides a universal framework when assessing any interface referencing an individual’s privacy. This framework is reinforced by Resolution 68/167 of the UN General Assembly. It provides that while the right to privacy is not absolute, any limitation to it must:
- be provided by law with clear and precise meaning, establishing clearly who is authorised to conduct data surveillance and under what circumstances; and
- there must be a legitimate aim bolstered by necessity and proportionality thus enabling the least intrusive option.
For example, limitation may be placed on the right to privacy based on national security or the right to life of others. When such limitations are invoked, the burden is on the authorities to show that the limitation is connected to the legitimate aim.
Furthermore, any limitation to the right to privacy must not render the essence of the right meaningless and must be consistent with other human rights, including the prohibition on discrimination. Where the limitation does not meet these criteria it is arbitrary and unlawful.
The European Court of Human Rights has consistently held that “protection of personal data is of fundamental importance to a person’s enjoyment of his or her right to respect for private and family life”.[i] The Court has taken a broad view of what constitutes personal data, recognising that “private and family life” protects not just data that can be used for personal-identification purposes, but any “data relating to the private life of an individual.”[ii] Accordingly, even public information can fall within the scope of private life where it is systematically collected and stored in files held by the authorities. That is all the more true where such information concerns a person’s distant past.[iii].
Any storing and releasing of a persons’ information, without giving them an opportunity to refute such information, amounts to an interference with his right to respect for private life.[iv]. In Shimovolos v Russia[v], a case involving the registration of a person on a surveillance database and the tracking of his travel movements, the Court held that “systematic storage and collection of data by security services” are interferences with the right to privacy.
It is axiomatic that national security and law enforcement are legitimate objectives of any State, including Jamaica. However, in Jamaica such operations must be in compliance with the constitution and human rights law
Victor Barrett is a First Year student at the Norman Manley Law School
[i] (See MK v France, App No 19522/09, Eur Ct HR, 2013) .
[ii] (See Marper v the United Kingdom [GC], App Nos 30542/04 and 30566/04, Eur Ct HR, 2008).
[iii] (See Rotaru v Romania [GC], App No 28341/95, Eur Ct HR, 2000)
[iv] (Leander v Sweden, App No. 9248/81, Judgment, Eur Ct HR, Page 48, 1987)
[v] EctHR, First Section, Application No 30194/09, 21 June 2011