CYIL Vol. 7, 2016

CYIL 7 ȍ2016Ȏ DIGITAL ASPECTS OF THE RIGHT TO PRIVACY ȃ SURVEILLANCE ISSUES preventive function must take up its role. For example the relevant legislation has to guarantee that even if surveillance will be conducted without the knowledge of the object (the surveilled person), he/she will be informed when the surveillance is over and no information of interest found (so-called post facto notification). International human rights protection unfortunately is not addressing this issue properly in the covenants. The already proposed amendment of the ICCPR should include a special system of providing effective remedy in case of secret surveillance and require states to report their activities in general. 3.2 ECHR Another above-mentioned document enlisting the right to privacy among the protected rights, is the ECHR. Article 8 ECHR enlists the right to respect for family and private life as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” The American system of human rights protection adds the right to privacy within the list of the ACHR article 11 17 and establishes a similar basis for its protection. The ACHR and the ICCPR do not contain a limitation clause in the same way as does the ECHR. 18 But if we look closely, even the ICCPR and ACHR prohibit unlawful or arbitrary (abusive) interference. The a contrario (opposite meaning) interpretation allows for legal and non-arbitrary (non-abusive) interference. And so even the ICCPR and the ACHR actually contain a limitation. According to the ECtHR, the notion of privacy encompasses, for example, physical and psychological integrity, aspects of social identity (including person’s pictures), gender and sexual identification and, of particular interest for this article, data gained by security services and surveillance. 19 17 “ 1. Everyone has the right to have his honor respected and his dignity recognized. 2. No one may be the object of arbitrary or abusive interference with his private life, his family, his home, or his correspondence, or of unlawful attacks on his honor or reputation. ” 3. Everyone has the right to the protection of the law against such interference or attacks. 18 ZIEMELE, Ineta. Privacy, Right to, International Protection. In Max Planck Encyclopedia of Public International Law , s. 5. Available online through the database of http://opil.ouplaw.com/home/epil. 19 ZIEMELE, Ineta. Privacy, Right to, International Protection. In Max Planck Encyclopedia of Public International Law , s. 11-24. Available online through database of http://opil.ouplaw.com/home/epil.

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