A/HRC/23/40
adopted, the impact of advances in information and communications technologies on the
right to privacy was barely understood.
26.
In its General Comment No. 34 (2011) on the right to freedom of expression, the
Human Rights Committee indicated that States parties should take account of the extent to
which developments in information and communication technologies have substantially
changed communication practices. The Committee also called on States parties to take all
necessary steps to foster the independence of these new media. The General Comment also
analyses the relationship between the protection of privacy and freedom of expression, and
recommends that States parties respect that element of the right of freedom of expression
that embraces the limited journalistic privilege not to disclose information sources. 10
27.
Tensions also exist between the right to privacy and the right to freedom of
expression, for example, when information considered to be private is disseminated through
the media. In this sense, article 19 (3) provides for restrictions on freedom of expression
and information to protect the rights of others. However, as it happens for all permissible
limitations to the right to freedom of expression (see below), the principle of
proportionality must be strictly observed, since there is otherwise danger that freedom of
expression would be undermined. Particularly in the political arena, not every attack on the
good reputation of politicians must be permitted, since freedom of expression and
information would otherwise be stripped of their crucial importance for the process of
forming political opinions, 11 advocating for transparency and combating corruption The
international jurisprudence at regional level indicates that in situations of conflict between
privacy and freedom of expression, reference should be made to the overall public interest
on the matters reported.12
B.
Permissible limitations to privacy and freedom of expression
28.
The framework of article 17 of the ICCPR enables necessary, legitimate and
proportionate restrictions to the right to privacy by means of permissible limitations. In
contrast with the provisions of article 19, paragraph 3, which spell out elements of a test for
permissible limitations,13 the formulation of article 17 does not contain a limitation clause.
Despite these differences in wording, it is understood that article 17 of the Covenant should
also be interpreted as containing elements of a permissible limitations test already described
in other General Comments of the Human Rights Committee. 14
29.
In this regard, the Special Rapporteur takes the position that the right to privacy
should be subject to the same permissible limitations test as the right to freedom of
movement, as elucidated in General Comment 27.15 The test as expressed in the comment
includes, inter alia, the following elements:
10
11
12
13
14
15
8
(a)
Any restrictions must be provided by the law (paras. 11-12);
(b)
The essence of a human right is not subject to restrictions (para. 13);
CCPR General Comment No. 34.
Nowak, Manfred, United Nations Covenant on Civil and Political Rights: CCPR Commentary (1993),
p.462
UNESCO, Global Survey on Internet Privacy and Freedom of Expression, 2012, pp. 53 and 99.
Lists of permissible limitations are also included in art. 12, (3), on the right to liberty of movement
and freedom to choose his residence; art. 18, (3), on the right to freedom of thought, conscience and
religion; art. 21, on the right of peaceful assembly; and art. 22, (2), on the right to freedom of
association.
Ibid.
See also CCPR General Comment No. 34.
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