10 March 2015Barbora Bukovska, ARTICLE 19

Freedom of Expression: Jurisprudential trends

Focus on surveillance

BackgroundVarious forms of surveillance addressed in case

law (e.g. electronic communication, surveillance of public spaces, data retention);

Infringement of variety of human rights, in particularThe right to freedom of expression;The right to privacy (private life);The right to effective remedy;

Lack of large scale judicial challenges – no class action, cases brought For the review of the constitutionality/lawfulness of

the legislation; orBy human rights activists; or Within specific issue in criminal cases.

Developments at regional courts

European Court of Human Rights (Council of Europe)Riina vs Italy (App. No. 43575/09, 11 March

2014) – video surveillance;Dragojevic vs Croatia (App. No. 68955/11, 15

January 2015) - lawfulness of surveillance;Pending cases

Zakharov vs Russia (App. No. 47143/06, hearing in 2014);

Big Brother Watch & Others vs the UK(App. no. 58170/13, communicated to the UK in 2014);

European Court of Justice (the EU)Digital Rights Ireland vs Ireland (Joint Cases C-

293/12 & C-594/12, 8 April 2014) – Data Retention Direction unlawful.

Developments in national courtsAustria – The Constitutional Court - Case

47/2012 of 27 June 2014 - on statutory provisions on data retention;

South Korea: The South Korean National Human Rights Commission - decision of 8April 2014 - on the lack of prior judicial authorization for access to the collected data;

The United Kingdom: The Investigatory Powers Tribunal – decision from 6 February 2015 in the case of Liberty vs GCHQ – on regulations covering access by the UK intelligence agency to emails and phone records intercepted by the NSA

Cases to watchPakistan: Bytes for All vs the Federation

of Pakistan and others – against the use of FinFisher Command and Control Server on the network of Pakistan Telecommunications Company Ltd and suspected digital surveillance targeting human rights defenders, NGOs and population at large;

Ethiopia: Kidane vs Ethiopia, launched in February 2014, in Federal Court in Washington, DC – challenging the Ethiopian government use of secret spyware (FinSpy);

Venezuela: Omar Silva vs Public Prosecutor of San Cristobal – launched in October 2014, challenge by human rights attorney for being target by the intelligence agencies for his human rights work.