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Home Human Rights Archive for category "Right To Privacy/Family Life"

The Naked Rambler in the European Court

Published on October 30, 2014        Author: 

Readers may recall that a couple of years ago I wrote about the story of Stephen Gough, aka the Naked Rambler, a man who has been repeatedly incarcerated in British prisons since 2006 for his refusal to wear any clothing in public. Indeed, he has spent most of that time in solitary confinement, since he could not join the rest of the prison population while refusing to wear clothes. Gough’s behaviour is due to a strongly and sincerely held belief that there is nothing shameful about the naked human body. And while Gough certainly has been obstinate (and has for some unfathomable reason sacrificed his family and other relationships for the sake of this cause), he is not crazy – indeed, his psychiatric evaluations have been stellar.

This case is so interesting precisely because it juxtaposes the expressive interests of a single individual against the preferences of the vast majority of ordinary people, who disapprove of public nudity, and because of the way that the machinery of the state is used to enforce a societal nudity taboo. Indeed, Gough’s case now rambled all the way to Strasbourg. This week, a unanimous Chamber of the European Court of Human Rights rejected Gough’s claims that his freedom of expression and right to private life were violated by his convictions in the UK (app. no. 49327/11).

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Human Rights Council Panel Discussion on Privacy in the Digital Age

Published on September 15, 2014        Author: 

Last Friday I had the privilege of moderating the panel discussion on the right to privacy in the digital age at the 27th regular session of the Human Rights Council. The video of the panel discussion is available here, and a press release summarizing some of the statements here. OHCHR will be producing a more detailed report on the discussion in due course.

It was a very interesting event, which benefited from four great panelists – Catalina Botero, the special rapporteur on the freedom of expression in the Inter-American system; Sarah Cleveland, professor at Columbia Law School; Yves Nissim, deputy chief of corporate social responsibility at Orange Telecom; and Carly Nyst, legal director of Privacy International. The discussion was lively and interactive, and also benefited from many comments from the floor by states and various NGOs. (Incidentally Dapo will also be moderating a HRC panel discussion next week on drones and counter-terrorism, also with an excellent cast of participants).

There was broad endorsement, from states as well as from the panelists, of the High Commissioner’s important report on the right to privacy in the digital age, with some disagreement on specific issues. The comments from the floor were quite varied in terms of topic, but two big themes were the application of the ICCPR to extraterritorial surveillance (on which see more here), and the quantity and quality of oversight and accountability mechanisms. The panelists and NGOs also called for the establishment of a new special rapporteur on the right to privacy.

The right to privacy in the digital age and the High Commissioner’s report will next be considered by the UN General Assembly at its forthcoming session next month.

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The ECtHR and the Regulation of Transnational Surrogacy Agreements

Published on July 25, 2014        Author: 

ivana6-1Ivana Isailović is a post-doctoral researcher at the Perelman Center for Legal Philosophy (Université libre de Bruxelles) and is affiliated with the IAP, Human Rights Integration Project.

In a number of recent cases, French courts refused to give effect to US court decisions that recognized French intending parents as legal parents of children born through surrogacy agreements and to inscribe the foreign filiation into the French civil status registry. In the decisions in Mennesson v. France and Labassee v. France, the European Court of Human Rights (ECtHR) ruled that those refusals violated children’s right to private and family life, protected by article 8 of the European Convention on Human Rights. It dismissed claims based on the breach of parent’s right to private and family life and on violations of article 14 (non-discrimination), article 6-1 (right to a fair trial) and article 12 (right to marry).

This is the first time the ECtHR has considered the question of transnational surrogacy. The decisions tackle some of the vexing issues related to the regulation of the booming global surrogacy market. These issues include ethical and political concerns related to the commodification of the body. Also in question are the definitions of citizenship and parenthood in a context in which the differences between domestic regimes illustrate a variety of cultural and political understandings of filiation and parenthood. This post focuses on the latter set of issues and the legal uncertainties they create.

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OHCHR Publishes Report on Surveillance and Privacy in the Digital Age

Published on July 18, 2014        Author: 

Readers will recall that in its resolution on the right to privacy in the digital age the UN General Assembly had requested the Office of the High Commissioner for Human Rights to prepare a report for the next GA session on the various issues raised by mass electronic surveillance and the human right to privacy (see here for our previous coverage). An advance edited version of that report (A/HRC/27/37) is now available here. The report is rich, thoughtful and very much pro-privacy in the surveillance context, albeit not in a blind, fundamentalist way. It reaffirms that the right to privacy, as set out in Article 17 ICCPR or Article 8 ECHR, provides a framework within which the legality of surveillance measures needs to be assessed. While it acknowledges the legitimate governmental interests that surveillance may serve, it finds the existing institutional and legal arrangements in many states wanting and in need of further study and reform. Here are some of the highlights:

- It is important to consider linkages with other possible human rights violations, e.g. the collection of intelligence through surveillance that is later used for an unlawful targeted killing (para. 14).

- Interferences with the privacy of electronic communication cannot be justified by reference to some supposedly voluntary surrender of privacy on the Internet by individual users (para. 18).

- Collection of communications metadata can be just as bad in terms of privacy interference as the collection of the content of the communication (para. 19).

- Because of the chilling effect of surveillance: ‘The very existence of a mass surveillance programme thus creates an interference with privacy.’ (para. 20).

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The Court of Justice of EU’s Judgment on the “Right to be Forgotten”: An International Perspective

Published on May 20, 2014        Author: 

In its judgment published on 13 May in the case C-131/12 Google Spain AEPD and Mario Costeja Gonzalez, the Court of Justice of the European Union (CJEU), Grand Chamber, recognized a “right to be forgotten” with regard to Internet search engine results. Unfortunately, the judgment has important international implications that the Court did not sufficiently consider. In this post, I will put aside the issues of EU data protection law that the judgment raises, and focus instead on its implications for the rights of individuals to use the Internet as a global communications medium. It is important to note that application of the judgment extends beyond particular search engine providers to include any “provider of content which consists in finding information published or placed on the internet by third parties, indexing it automatically, storing it temporarily and, finally, making it available to internet users according to a particular order of preference” (paragraph 21), which could include Internet archives, social media, news crawler services, and many other types of online services.

The plaintiff in the case complained to the Spanish Data Protection Agency (DPA) against a Spanish newspaper and Google, stating that a Google search brought up a link to the newspaper containing irrelevant information about him, and requesting that the newspaper be required to remove or alter the pages and that Google be required to remove the data from the search results. The DPA found against Google, which then appealed to the Spanish Audiencia Nacional (National High Court). The Spanish court referred the case to the CJEU. On June 25, 2013, Advocate-General Jääskinen recommended that the Court find that it had jurisdiction over Google; that in its role as a search engine provider, Google was a data processor rather than a controller; and that the EU Data Protection Directive 95/46 does not contain a right to be forgotten that could entitle the plaintiff to have his data deleted from search engine results.

In its judgment, the Court differed in several important points from the Advocate-General’s opinion, and reached the following conclusions:

–Google’s branches in the EU are subject to the national data protection law of the EU member states where they are located, since they are “inextricably linked” to the activities of the Google headquarters in the US by virtue of Google Spain selling advertising space on the search engine provided by Google Inc, even if the actual processing is carried out in the US (paragraphs 42-60).

–Search engines are “data controllers” and as such are independently responsible for the personal data they retrieve, store, and display from websites (paragraphs 21-41).

–Under the Directive, there exists a limited right to have search engines delete material from search results (i.e., a “right to be forgotten”), regardless of whether the material indexed was posted legally or whether it is accurate (paragraphs 62-99). Read the rest of this entry…

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More on the UN and Surveillance and Privacy in the Digital Age

Published on April 17, 2014        Author: 

The Office of the High Commissioner for Human Rights is now conducting a consultation for the purpose of preparing the High Commissioner’s report pursuant to the UN General Assembly’s resolution on privacy in the digital age. Some of the major privacy/human rights NGOs have now made their submissions public: here is the paper submitted jointly by Privacy International, Access, Electronic Frontier Foundation, Article 19, Association for Progressive Communications, Human Rights Watch, and the World Wide Web Foundation; and here is the submission by the Center for Democracy and Technology. The NGOs argue, inter alia, that Article 17 ICCPR applies to (extraterritorial) surveillance activities and that the bulk collection of communications data is inherently disproportionate.

UPDATE: All of the submissions are now available on the OHCHR website.

Quoting verbatim from the GA’s resolution, the Human Rights Council has also decided to convene a panel on the right to privacy in the digital age at its 27th session, to be held in September. The multi-stakeholder panel is to discuss ‘the promotion and protection of the right to privacy in the digital age in the context of domestic and extraterritorial surveillance and/or the interception of digital communications and the collection of personal data, including on a mass scale, also with a view to identifying challenges and best practices, taking into account the report of the United Nations High Commissioner for Human Rights requested by the General Assembly in its resolution 68/167.’

Readers may also recall that a few months ago I did a series of posts on human rights and foreign surveillance. I’ve since written up a more developed and expanded article based on that series, which takes into account developments as of March 2014, including the Koh memos and the concluding observations of the Human Rights Committee on the US fourth periodic report. The article will be published in the Harvard International Law Journal, and the draft is now available on SSRN. Comments are as always welcome; the abstract is below the fold.

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The dilution of the family in human rights: Comments on Vallianatos and other ECHR cases on “family life”

Published on March 25, 2014        Author: 

In the decision of Vallianatos and others v. Greece (No. 29381/09 and 32684/09) delivered on 7th November 2013, the European Court of Human Rights (the Court) considered that two adult men living separately should benefit from the protection granted to families in the particular case where they maintained a stable homosexual relationship. On this occasion the Court affirmed that, from now on, when a European State legislates as regards the family, it “in its choice of meansmust necessarily take into account developments in society and changes in the perception of social and civil-status issues and relationships, including the fact that there is not just one way or one choice when it comes to leading one’s family or private life” (§ 84). The Court thus ensures that European States adapt their legislation to (its own perception of) the evolution of morals. This decision marks a new stage in the accelerated dissolution of the legal definition of the family which from a biological and institutional reality has become a concept which is flexible to the point of inconsistency.

The family constituted by marriage and/or children

The European Convention on Human Rights (the Convention) protects “private and family life” in the same provision (Article 8), along with the home and correspondence. However, the Court has progressively distinguished the protection of private life from that of family life. Private life is a broad concept which does not lend itself to an exhaustive definition. The essential goal of the protection afforded by it is to protect the individual from the arbitrary interference of the authorities and it may in addition create positive obligations inherent in an effective “respect” for private life (Olsson v. Sweden, No. 10465/83, 24.03.1988). As for the protection of family life, it focuses primarily on the relationship between children and their parents. Read the rest of this entry…

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Foreign Surveillance and Human Rights, Part 5: The Substance of an Extraterritorial Right to Privacy

Published on November 29, 2013        Author: 

This post is part of a series: Intro, Part 1, Part 2, Part 3, Part 4.

Between Utopia and Apology, Universality and Effectiveness

My previous posts have all dealt with the threshold question of whether individuals subject to surveillance overseas should be entitled to human rights in the first place. This post will deal with the substance of the right to privacy in this context, if the right is found to apply. Though my main focus has been on the threshold question of extraterritorial application, and though that question is conceptually distinct from the substantive content of any given right, there is a direct connection as a matter of policy between the inquiries on jurisdiction and on the merits. The more difficult, complex or politically controversial the merits question of whether the substantive right has been violated, the greater the temptation to say that the right simply does not apply. Courts in particular frequently resort to dismissing cases in limine even while furtively casting an eye on the merits, in order to avoid grappling with the merits openly. One cannot really reduce arbitrariness in resolving threshold questions without looking at what the consequences of doing so would be down the line.

I have argued in that regard that the case law on the extraterritorial application of human rights treaties, particularly that of the European Court, straddles a Koskenniemian divide between universality and effectiveness. On one hand we want to follow the moral logic of universality and protect human beings no matter where they are located; on the other we see the enormous practical and political difficulties of doing so. An expansive approach to extraterritoriality can thus be criticized as utopian, as presenting a normative vision which has nothing to do with the real world, whereas a restrictive approach can be dismissed as pure apology for unbridled, arbitrary and limitless exercise of state power which we would never accept domestically.

A persuasive argument regarding the threshold of extraterritorial application hence must also look at the substance and attempt to strike a better balance between universality and effectiveness. It must provide states and courts with sufficient flexibility in the extraterritorial context and not impose unrealistic burdens and restrictions with which they could never comply. Resistance to extraterritorial application flows in large part from the fact that most human rights case law was built in times of normalcy, and the fear that applying this case law to external situations would be rigid and inflexible. However, most human rights, including privacy, analytically employ balancing tests that can be used less strictly if this is justified by the circumstances. (Compare this, for example, with the rigidity of the US Fourth Amendment warrant requirement for searches and seizures, which even in the domestic context leads to narrow interpretations of what is a search or seizure).

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Foreign Surveillance and Human Rights, Part 4: Do Human Rights Treaties Apply to Extraterritorial Interferences with Privacy?

Published on November 28, 2013        Author: 

This post is part of a series: Intro, Part 1, Part 2, Part 3, Part 5.

Bearing in mind the three models of extraterritorial application that I outlined in my previous post, the only model which provides an easy, clear answer is the third one. If the negative obligation to respect the right to privacy is territorially unlimited, then any interference with this right in any place in the world would implicate the ICCPR or the ECHR. This is not to say that such interferences, whether through a mass surveillance program or a targeted one, would necessarily be illegal. Rather, any such interference would need to be substantively justified within the analytical framework of human rights treaties (i.e. is the interference prescribed by law; does it serve a legitimate aim; is it proportionate to that aim). No threshold question of jurisdiction would arise, and just like with purely internal surveillance the analysis would need to be one on the merits. But again, this is also not to say that on the merits internal and external surveillance would need to be treated equally in every respect – more on this in my next, and final, post.

The third model provides a clear answer on the threshold question of applicability, but also one that is very broad and immediately leads to examination of the merits which carries with it its own uncertainties. This is precisely why the third model may not be appealing to those actors, be they governments, secret services, courts, or what have you, who would want to avoid the difficulties of a merits analysis or the constrains of human rights treaties altogether.

I will thus proceed to situate the following discussion within the confined of the more established spatial and personal models. But as soon as I do so, we will see how we run into uncertainty, complexity, and potential for arbitrariness. This is at least partly due to the fact that technological advances in obtaining information have rendered the exercise of manual, physical power over individuals unnecessary or less necessary. While privacy law in the information era frequently developed by analogy to old-school physical searches or interferences, be it in domestic systems (say under the Fourth Amendment to the US Constitution) or in international human rights law, there comes a point at which such analogies are no longer feasible or are outright misleading.

But such analogies can be a useful starting point. I will now outline some scenarios of possible interferences with privacy through searches, interception, or surveillance, starting with the more physical and ending with the most virtual. Under existing case law all of these actions by state agents against individuals could in principle count as interferences with their privacy rights under either the ECHR or the ICCPR if these actions were to occur on the state’s own territory. The problem I want to get at is jurisdiction, i.e. whether human rights treaties would apply in the first place if the state engaged in such conduct extraterritorially under either the spatial or the personal model, and whether distinctions should be made in terms of jurisdiction between the physical and the virtual methods of gathering information.

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Foreign Surveillance and Human Rights, Part 3: Models of Extraterritorial Application

Published on November 27, 2013        Author: 

This post is part of a series: Intro, Part 1, Part 2, Part 4, Part 5.

In this post I will provide a brief outline of the (often conflicting and confusing) case law on the meaning of the concept of state jurisdiction in human rights treaties. I will examine the spatial model of jurisdiction, which conceptualizes it as effective overall control of an area, the personal model of jurisdiction as authority and control over individuals, and a third model which distinguishes between the positive and negative obligations of states under human rights treaties. My next post will proceed to apply these models to several possible factual scenarios of overseas surveillance.

The European Court has produced by far the most case law on extraterritorial application, both in quantity and in variety. No case that I am aware of, however, deals directly with the question of extraterritorial application of the Convention to foreign searches, interceptions, or surveillance. The issue is thus one very much of first impression. The jurisprudence of the Human Rights Committee, on the other hand, is not as conflicting or contradictory, even if it is less varied. The Committee has also generally been more generous towards applicants than the European Court; unless I am mistaken, there is no case in which the Committee rejected the communication of a person who made an arguable case that his or her rights were violated extraterritorially on the grounds that this person was not subject to the jurisdiction of the relevant state. (The Committee’s generosity can be explained, in my view, by the fact that it does not necessarily need to live with the consequences of an expansive approach in the same way as the Strasbourg Court, where the stakes are higher because of the greater robustness of the regime and the binding nature of the Court’s decisions).

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