A/HRC/29/32
unbounded discretion to apply the limitation (see Human Rights Committee, general
comment No. 34 (2011)). Proposals to impose restrictions on encryption or anonymity
should be subject to public comment and only be adopted, if at all, according to regular
legislative process. Strong procedural and judicial safeguards should also be applied to
guarantee the due process rights of any individual whose use of encryption or anonymity is
subject to restriction. In particular, a court, tribunal or other independent adjudicatory body
must supervise the application of the restriction.15
33.
Second, limitations may only be justified to protect specified interests: rights or
reputations of others; national security; public order; public health or morals. Even where a
State prohibits by law “advocacy of national, racial or religious hatred that constitutes
incitement to discrimination, hostility or violence, as provided by Article 20 of the
Covenant, any restrictions on expression must be consistent with Article 19(3) (A/67/357).
No other grounds may justify restrictions on the freedom of expression. Moreover, because
legitimate objectives are often cited as a pretext for illegitimate purposes, the restrictions
themselves must be applied narrowly.16
34.
Third, the State must show that any restriction on encryption or anonymity is
“necessary” to achieve the legitimate objective.17 The European Court of Human Rights has
concluded appropriately that the word “necessary” in article 10 of the European Convention
for the Protection of Human Rights and Fundamental Freedoms means that the restriction
must be something more than “useful,” “reasonable” or “desirable”.18 Once the legitimate
objective has been achieved, the restriction may no longer be applied. Given the
fundamental rights at issue, limitations should be subject to independent and impartial
judicial authority, in particular to preserve the due process rights of individuals.
35.
Necessity also implies an assessment of the proportionality of the measures limiting
the use of and access to security online.19 A proportionality assessment should ensure that
the restriction is “the least intrusive instrument amongst those which might achieve the
desired result”. 20 The limitation must target a specific objective and not unduly intrude
upon other rights of targeted persons, and the interference with third parties’ rights must be
limited and justified in the light of the interest supported by the intrusion. The restriction
15
16
17
18
19
20
12
See International Covenant on Civil and Political Rights, article 2 (3)(b); CCPR/C/79/Add.110,
para. 22; the Johannesburg Principles on National Security, Freedom of Expression and Access to
Information.
See Human Rights Committee, general comment No. 34 on freedom of opinion and expression,
para. 30, and
ghttp://tbinternet.ohchr.org/_layouts/treatybodyexternal/download.aspx?symbolno=ccpr%2
52fc%252f21%252frev.1%252fadd.13&lang=eneneral
chttp://tbinternet.ohchr.org/_layouts/treatybodyexternal/download.aspx?symbolno=ccpr%2
52fc%252f21%252frev.1%252fadd.13&lang=enomment No. 31.
See Human Rights Committee, general comment No. 34, para. 2, and communication No. 2156/2012,
Views adopted on 10 October 2014.
See Case of The Sunday Times v. United Kingdom, judgement of 26 April 1979, para. 59.
See African Court Human and Peoples’ Rights, Lohe Issa Konate v. Burkina Faso, application
No. 004/2013, paras. 148 and 149 (2014); European Court of Human Rights, Case of The Sunday
Times, para. 62.
See Human Rights Committee,
ghttp://tbinternet.ohchr.org/_layouts/treatybodyexternal/download.aspx?symbolno=ccpr%2
52fc%252f21%252frev.1%252fadd.9&lang=eneneral
chttp://tbinternet.ohchr.org/_layouts/treatybodyexternal/download.aspx?symbolno=ccpr%2
52fc%252f21%252frev.1%252fadd.9&lang=enomment No. 27 (1999) on freedom of
movement, para. 14.
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