CYIL vol. 7 (2016)

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CYIL 7 ȍ2016Ȏ DIGITAL ASPECTS OF THE RIGHT TO PRIVACY ȃ SURVEILLANCE ISSUES
That is connected with so-called surveillance. In general, surveillance means
watching over someone/something, but within the context of privacy, it means
interference within another person’s private sphere by observance of his/her activities.
It can take the form of “natural” observance as well as digital forms, for example
tapping one’s phones, surveillance of his/her electronic communications etc. In order
to fulfill the requirements of human rights protection, surveillance must always
fulfill certain conditions. In a case of indiscriminate nature, when the observation
is not limited to a particular activity and has unclear objectives, it is called mass
surveillance; on the other hand, if it is legitimate – mostly focused on a particular
person for a particular (mostly suspected criminal) reason, established in accordance
with law, it is called targeted surveillance. Sometimes the scope of surveillance is
even denoted as what differentiates democracy from police states.5
It is necessary to distinguish surveillance from espionage.6 While it is probable
that espionage is a so-called lacuna in international law (an area not regulated by
international law),7 surveillance is regulated by international human rights obligations
of States.8 After-all, espionage, in its very essence, is focused on gaining advantage
over an adversary by finding out his/her weakness; surveillance is not directed in the
same way. In relation to legal issues, it is mostly directed at finding out the illegal
activities of individuals; espionage is on the other side of the coin – it is activity that
is usually considered illegal under domestic law.
The core issue of this article focuses on the term privacy, and so an explanation
of this is important as well. There is no doubt that privacy is one of the key elements
of human rights protection. It is the core of individual self-determination and
a requirement for personal development. According to the European system (both
the EU and Council of Europe) interpretation, it means (among other things) the
right to be left alone and requires non-interference with an individual’s decisions.9
Another very important term refers to the so-called metadata. This word comes
from the Greek language and simply means data about data and describes them.10 For the
purpose of using it in relation to modern technologies such as email communication, it
5 BIGO, D., CARRERA S., HERNANZ, N., JEANDESBOZ, J., PARKIN, J., RAGAZZI, F.,
SCHERRER, A. Mass Surveillance of Personal Data by EU Member States and its Compatibility
with EU Law, p. 11. Available at > [last
visited June 10, 2016].
6 I see a reason for this distinction in reasons discussed later in this section. But I am aware of the fact that
not everyone distinguishes these two instruments: DEEKS, Ashley. An International Legal Framework
for Surveillance. In 55 Virginia Journal of International Law (2015).
7 DEEKS, Ashley. An International Legal Framework for Surveillance. In 55 Virginia Journal of International
Law (2015), p. 301.
8 See the following chapter of this article.
9 ZIEMELE, Ineta. Privacy, Right to, International Protection. In Max Planck Encyclopedia of Public
International Law, s. 1. Available online through database of
10 Webpage URL > [last visited June 7, 2016].