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MILAN LIPOVSKÝ
CYIL 7 ȍ2016Ȏ
means additional information related to the email with the exception of the content
itself. Examples of metadata are e.g. who created the document, when it was created,
how long it is. But it does not mean the content (i.e. the text itself ).
3. The right to privacy in international law
The right to privacy is one of the civil rights encompassed in many of the most
important international treaties, such as the International Covenant on Civil and
Political Rights (hereinafter referred to as the “ICCPR”),
11
the European Convention
on Human Rights (hereinafter referred to as the “ECHR”),
12
the American Convention
on Human Rights (hereinafter referred to as the “ACHR”),
13
but surprisingly not
in the African Charter on Human and People’s Rights (hereinafter referred to as
the “ACHPR”).
14
The protection is so vast that it is possible to say that the entire
international community respects the need for the right to privacy.
15
3.1 ICCPR
The ICCPR deals with the right to privacy in article 17:
“1. No one shall be subjected to arbitrary or unlawful interference with his privacy,
family, home or correspondence, nor to unlawful attacks on his honour and
reputation.
2. Everyone has the right to the protection of the law against such interference or
attacks.”
If any right under the ICCPR is violated, the Covenant in its article 2(3)(a)
requires that the person whose rights were breached has the right to effective remedy.
Cessation of the breach is an integral part of the effective remedy. And failure to
investigate the alleged breach may constitute a violation of its own.
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Quite an obvious problem of effective remedy for violation of the right to privacy
is that if the surveillance was conducted in secret (and digital surveillance is even
more susceptible to being carried out in secret), the object of it has no idea of his/
her rights being breached and thus does not pursue the remedy. For this reason, the
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International Covenant on Civil and Political Rights, 999 UNTS 171, agreed on December 16, 1966,
in force since March 23, 1976.
12
(European) Convention for the Protection of Human Rights and Fundamental Freedoms, ETS No. 5,
agreed on November 4, 1950, in force since September 3, 1953.
13
American Convention on Human Rights, OAS Treaty Series No. 36, agreed on November 22, 1969,
in force since July 18, 1978.
14
African Charter on Human and Peoples’ Rights, 1520 UNTS 363, agreed on June 27, 1981, in force
since October 21, 1986.
15
UN, The Right to Privacy in the Digital Age. Report of the Office of the United Nations High
Commissioner for Human Rights. A/HRC/27/37, p. 5.
16
UN, The Right to Privacy in the Digital Age. Report of the Office of the United Nations High
Commissioner for Human Rights. A/HRC/27/37, p. 13.