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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 1117 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
19 ZIEMELE, Ineta. Privacy, Right to, International Protection. In Max Planck Encyclopedia of Public
International Law, s. 11-24. Available online through database of