A/HRC/23/40
(c)
Restrictions must be necessary in a democratic society (para. 11);
(d)
Any discretion exercised when implementing the restrictions must not be
unfettered (para. 13);
(e)
For a restriction to be permissible, it is not enough that it serves one of the
enumerated legitimate aims. It must be necessary for reaching the legitimate aim (para. 14);
(f)
Restrictive measures must conform to the principle of proportionality, they
must be appropriate to achieve their protective function, they must be the least intrusive
instrument amongst those which might achieve the desired result, and they must be
proportionate to the interest to be protected (paras. 14-15).
C.
Recent considerations by international mechanisms for the protection
of human rights
30.
In previous reports, the Special Rapporteur has assessed the impact of the Internet
on the realization of the right to freedom of opinion and expression (A/HRC/17/27 and
A/66/290). He noted that, while Internet users can enjoy relative anonymity on the Internet,
States and private actors also have access to new technologies to monitor and collect
information about individuals’ communications and activities. Such technologies have the
potential to violate the right to privacy, thereby undermining people’s confidence and
security on the Internet and impeding the free flow of information and ideas online. The
Special Rapporteur urged States to adopt effective privacy and data protection laws in
accordance with human rights standards, and to adopt all appropriate measures to ensure
that individuals can express themselves anonymously online. 16
31.
Other Special Procedures mandate holders considered the issue of interferences with
the right to privacy. The Special Rapporteur on the promotion and protection of human
rights and fundamental freedoms while countering terrorism studied developments in
surveillance practices and technologies that have adversely affected the right to privacy
using the justification of combating terrorism. 17 The Special Rapporteur underscored that
these measures have not only led to violations of the right to privacy, but have also had an
impact on due process rights and the rights to freedom of movement, freedom of
association and freedom of expression. He urged Governments to articulate in detail how
their surveillance policies uphold the principles of proportionality and necessity, in
accordance with international human rights standards, and what measures have been taken
to protect against abuse. The Special Rapporteur also called for the adoption of
comprehensive data protection and privacy laws and the establishment of strong
independent oversight bodies mandated to review the use of intrusive surveillance
techniques and the processing of personal information. He further called for research and
development resources to be devoted to privacy-enhancing technologies.
32.
Other human rights protection mechanisms have also recently paid attention to the
impact of the surveillance of communications on the protection of the rights to privacy and
freedom of expression. The Human Rights Committee voiced concerns, for example, at
allegations of State monitoring the use of the Internet and blocking access to some
websites18 and recommended the review of legislation providing the executive with wide
powers of surveillance in respect of electronic communications. 19 The Universal Periodic
16
17
18
19
A/HRC/17/27, p.22.
A/HRC/13/37.
CCPR/C/IRN/CO/3.
CCPR/C/SWE/CO/6.
9
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