A/HRC/41/35
human rights obligations and must be conducted on the basis of a legal framework, which
must be publicly accessible, clear, precise, comprehensive and non-discriminatory.
26.
While these principles apply in all cases of targeted surveillance, they have
particular force when expression in the public interest is implicated. Targeted surveillance
creates incentives for self-censorship and directly undermines the ability of journalists and
human rights defenders to conduct investigations and build and maintain relationships with
sources of information (A/HRC/38/35/Add.2, para. 53). The Committee has emphasized
that restrictions may never be invoked as a justification for the muzzling of any advocacy of
multiparty democracy, democratic tenets and human rights.32 Attacks on a person because
of the exercise of his or her right to freedom of expression may not be justified by article 19
(3).33 The Committee further singled out the importance of protecting journalists and
persons who engaged in the gathering and analysis of information on the human rights
situation and who published human rights-related reports, including judges and lawyers.34
These protections extend to the confidentiality of sources, which international and regional
human rights mechanisms (in the African, European and inter-American systems) have
emphasized should be protected under law (A/70/361, para. 5).
27.
In addition to the primary obligations not to interfere with privacy or restrict
expression, States also have duties to protect individuals against third-party interference.
Article 2 of the International Covenant on Civil and Political Rights, reflecting the primary
duties of States, imposes an obligation to respect and to ensure to all individuals within its
territory and subject to its jurisdiction the rights recognized in the Covenant. 35 Article 17 (2)
of the Covenant provides that everyone has the right to the protection of the law against
unlawful interference with his or her privacy. However, it is not clear that States generally
afford affirmative legal protections against targeted surveillance. This is certainly true of
transnational surveillance, even when committed by foreign entities against one’s own
citizens.36 In one instance concerning the allegations of targeted surveillance in Mexico, the
Special Rapporteur for freedom of expression in the Inter-American Commission on
Human Rights and the Special Rapporteur on the promotion and protection of the right to
freedom of opinion and expression conducted a joint mission to the country in which they
raised the issue of the Government’s use of the Pegasus spyware. They urged the
Government to allow an independent investigation of the allegations that the spyware was
deployed against journalists (A/HRC/38/35/Add.2, paras. 52–55). To date, the efforts to
investigate the allegations have not clarified the situation, despite the orders of the National
Institute for Transparency, Access to Information and Personal Data Protection of Mexico
that the Government reveal the nature of its contracts to obtain Pegasus. 37
28.
It is clear from the Guiding Principles on Business and Human Rights:
Implementing the United Nations “Protect, Respect and Remedy” Framework adopted by
the Human Rights Council in 2011, that a State’s duty to protect includes a duty to take
appropriate steps to prevent, investigate, punish and redress human rights abuse by third
parties (A/HRC/17/31). In the Guiding Principles, States are urged to exercise adequate
oversight in order to meet their international human rights obligations when they contract
with, or legislate for, business enterprises to provide services that may have an impact on
the enjoyment of human rights (ibid., p. 10).
32
33
34
35
36
37
General comment No. 34, para. 23.
Ibid.
Ibid.
See also Human Rights Committee, general comment No. 31 (2004) on the nature of the general legal
obligation imposed on States parties to the Covenant. Note that under general comment No. 31, article
17 on privacy is specifically included as an example of an article in which there are positive
obligations on States parties to address the activities of private persons or entities.
See Nate Cardozo, “D.C. circuit court issues dangerous decision for cybersecurity: Ethiopia is free to
spy on Americans in their own homes”, Electronic Frontier Foundation, 14 March 2017.
See Instituto Nacional de Transparencia, Acceso a la Información y Protección de Datos Personales,
“Fiscalía general de la República tiene oportunidad histórica para acabar con la impunidad en caso
Pegasus: Salas Suárez”, 27 March 2019; and Juan Arvizu, “Ordena Inai a PGR abrir contrato de
compra de Pegasus”, El Universal, 17 April 2018.
9
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