CYIL vol. 7 (2016)

259

CYIL 7 ȍ2016Ȏ

DIGITAL ASPECTS OF THE RIGHT TO PRIVACY ȃ SURVEILLANCE ISSUES

as a threat of terrorism, an interference within the right to privacy like this of anyone

using related fiber cables establishes a dangerous precedent of treating the whole

society as suspects. It is a classic example of mass surveillance and as such is quite

likely to be considered as violating the ECHR due to its the non-discriminate nature.

The notification of surveillance was already briefly discussed above in relation

to the ICCPR. The problem of secrecy was mentioned. One way to solve the effective

remedy is also that a State creates legislation publicly available that establishes a system

of surveillance. The ECtHR accepted that even the mere existence of such a systemmay

support the claim of a violation of the right to privacy if there is a reasonable likelihood

of being subjected to surveillance.

Based on this, we may expect a growing number of

applications to various human rights protection bodies if Big Brother Watch succeeds

at the ECtHR. The questions is whether the system is prepared for such a (expectedly)

large number of applications. And if all communication travelling in and out of the

country really was surveilled, then the number may be gigantic.

3.3 EU

The frame of the protection of the right to privacy within the European Union is

also created by Union legislation, both primary and secondary. There is a short article

7 in the Charter of Fundamental Rights of the European Union (hereinafter referred

to as “the Charter”)

stating:

“Everyone has the right to respect for his or her private

and family life, home and communications

”

However, the European Union has gone

further in protection of data, as article 8 of the Charter proves:

“Protection of personal data

1. Everyone has the right to the protection of personal data concerning him or her.

2. Such data must be processed fairly for specified purposes and on the basis of the

consent of the person concerned or some other legitimate basis laid down by law.

Everyone has the right of access to data which has been collected concerning him or

her, and the right to have it rectified.

3. Compliance with these rules shall be subject to control by an independent authority.”

In this version, the right to privacy certainly covers even electronic/digital privacy

and even establishes the need for independent review of administrating personal data.

This provision in fact reflects the need for new legal regulation of the digital aspects

of the right to privacy that this article calls for. Unfortunately it is “only” a regional

provision. It establishes the need for effective remedy, clearly states that the right to

The Human Rights Committee referred to several cases of the ECtHR in: 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, art. 40, footnote 35.

Charter of Fundamental Rights of the European Union, (2012/C 326/02). Available online on URL

:12012P/TXT&from=EN> [last

visited June 9, 2016].