Category Archives: privacy

European Court: UK’s Mass Interception of Online Communications Violated Rights

European Court of Human Rights
European Court of Human Rights

European Court of Human Rights
Credit: CherryX via Wikimedia Commons

On September 13, 2018, the European Court of Human Rights (ECtHR) ruled that the United Kingdom’s bulk collection of online communications and its collection of data from communication service providers (CSPs) violated the rights to privacy and freedom of expression. See ECtHR, Big Brother Watch and Others v. the United Kingdom, nos. 58170/13, 62322/14, 24960/15, ECHR 2018, Judgment of 13 September 2018. Although the Court did not rule that mass collection is inherently a violation of privacy, disappointing many privacy advocates, the ECtHR held that such programs must have adequate safeguards to protect against abuse. [Sky News]

The decision is the first time that the ECtHR has reviewed the UK’s surveillance program since whistleblower Edward Snowden’s revelations in 2013, which revealed cross-border government surveillance efforts, including those by the UK intelligence agency Government Communications Headquarters (GCHQ) to intercept millions of private communications. [Guardian] The ECtHR did not consider the legality of the 2016 legislative amendments to the UK’s surveillance program, which followed the Snowden disclosures and are currently being challenged domestically. [Guardian] Read more

Mandatory HIV/AIDS and Drug Testing Violates Rights to Privacy & Equal Protection

The Allée des Nations
Credit: Tom Page via Wikimedia Commons

During its 123rd Session, the United Nations Human Rights Committee issued its first decision on the privacy and equal protection implications of mandatory HIV/AIDS and drug testing for individuals seeking a visa extension. See Human Rights Committee, Vandom v. Republic of Korea, Communication No. 2273/2013, Views of 12 July 2018, UN Doc. CCPR/C/123/D/2273/2013. The case concerned an American English teacher, working in the Republic of Korea, whose application to renew her teaching visa was denied after she refused to submit to a mandatory HIV/AIDS and drug test. See id. at paras. 1-2.8. The Human Rights Committee held that the Republic of Korea’s policy of requiring mandatory drug and HIV tests from individuals who were not nationals of the State or of Korean ethnicity and who were seeking to obtain teaching visas constituted a violation of the right to equal protection and the right to privacy under the International Covenant on Civil and Political Rights (ICCPR). See id. at paras. 8.5, 8.9. While this is the first case in which the Human Rights Committee has reviewed mandatory drug and HIV testing policies, another treaty body, the UN Committee on the Elimination of Racial Discrimination (CERD), issued a decision in 2015 on the Republic of Korea’s mandatory testing policy. [IJRC] The CERD found that the policy amounted to racial discrimination under the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). The case before CERD did not discuss the right to privacy. [IJRC]

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Supreme Court of India Declares Privacy Is a Fundamental Right

Supreme Court of India
Credit: Legaleagle86 via Wikimedia Commons

At the end of August, the Supreme Court of India unanimously held that the Constitution of India specifically protects the right to privacy, which it concluded is inherent to constitutional guarantees of life and liberty pursuant to its Article 21 and, therefore, already exists as a fundamental freedom enshrined in the Constitution. See Justice K.S. Puttaswamy (Retd) vs. Union of India, (2017) (India) (opinion of Chandrachud, J.), at 110, 254, 257, 262. The decision arose from a case challenging the constitutionality of the country’s system of using biometrics to identify individuals. For the case to move forward, the nine judges of the Supreme Court of India had to first determine whether the Constitution of India protects the right to privacy. See id. at 7. Affirming the right, the court’s decision was in accordance with international standards on privacy; the court confirmed that individuals have a zone of privacy limited by others’ rights and that the State may interfere with the right to privacy only through established law in pursuit of a legitimate aim and when necessary in a democratic society. See id. at 180-91, 242-46. The constitutional challenge to the biometric identification system will now resume, taking into account the privacy framework decided by the court.

According to Human Rights Watch (HRW) the ruling in the present case will not only have an impact on national policies concerning mandatory identification programs, but also other domestic issues, such as sexual orientation; the opinion explicitly states that sexual orientation is essential to privacy and identity, and discrimination on the basis of sexual orientation is counter to dignity. A challenge to India’s law criminalizing same-sex relations is also currently pending in court. [HRW] See id. at 124. The decision already overruled two prior domestic cases that held the right to privacy is not specifically protected under the Constitution of India. See Justice K.S. Puttaswamy (Retd) vs. Union of India, (opinion of Chandrachud, J.), at 5. Read more

ECtHR: Romania Violated Privacy Rights After Employer Monitored Instant Messages

European Court of Human Rights
Credit: CherryX via Wikimedia Commons

On September 5, 2017, the Grand Chamber of the European Court of Human Rights (ECtHR) ruled that a private company’s decision to dismiss an employee, after monitoring and accessing his instant messages sent from the workplace, violated the employee’s right to respect for private and family life, enshrined in Article 8 of the European Convention on Human Rights. See ECtHR, Bărbulescu v. Romania [GC], no. 61496/08, ECHR 2017, Judgment of 5 September 2017, para. 141. The ECtHR held that Romanian authorities did not protect Bogdan Mihai Bărbulescu’s right to private life because the Romanian courts did not adequately balance Bărbulescu’s interest in privacy and the employer’s interest in monitoring communications sent from the workplace. The national courts, the European Court found, did not sufficiently assess the relevant factors of whether the employer gave prior notice to the employee that communications may be monitored; whether there was a reasonable justification for monitoring the employee’s communications; whether there were less intrusive measures available to the employer to achieve the same end; and the necessity of the disciplinary action taken against the employee. See id. at para. 124, 133, 139-41. This case adds to the ECtHR’s developing jurisprudence on the balance between the competing interests of an employee’s right to privacy and a private employer’s right to monitor communications; two previous cases determined that the State has a positive obligation to protect the employee’s right to privacy of telephone communications, email, and internet use that originates at work. See ECtHR, Halford v. the United Kingdom, no. 20605/92, ECHR 1997, Judgment of 25 June 1997; ECtHR, Copland v. the United Kingdom, no. 62617/00, ECHR 2007, Judgment of 3 April 20017. Read more

Requiring Operation to Correct Sex on Birth Certificate Violates Rights

European Court of Human Rights
Credit: CherryX via Wikimedia Commons

On April 6, 2017, the European Court of Human Rights (ECtHR) ruled that France’s requirement that two transgender applicants first undergo an irreversible identity change through an operation or sterilizing treatment in order to correct their “sex” designation on their birth certificates violated Article 8 (right to respect for private life) of the European Convention on Human Rights. The ECtHR determined that such a requirement impermissibly conditioned the recognition of the right to respect for private life on forgoing the right to respect for one’s physical integrity. See ECtHR, AP., Garçon and Nicot v. France, Nos. 79885/12, 5247/13, 52596/13, ECHR 2017, Judgment of 6 April 2017, para. 131 (French version). The ECtHR found no violation of Article 8, however, where French law required an applicant to prove that they suffered from gender identity disorder before the State would grant a change to their birth certificate under the category of “sex.” See id. at para. 139. Similarly, the ECtHR held there was no violation of Article 8 where an applicant was ordered by a French court to undergo a medical examination to confirm the applicant’s sex reassignment surgery. See id. at para. 150-152.

The Court did note the expansion of transgender rights at the national and international levels, including in France where since the applicants submitted their claims, the law has changed so that corrections to official sex designations are no longer conditioned upon irreversible medical procedures or sterilization treatments, but rather require publicly presenting oneself as the claimed sex; being recognized by family, friends, and colleagues as their claimed sex; and evidence that their name has been changed to correspond with their claimed sex. The Council of Europe has called for an end to the practice of conditioning the recognition of an individual’s chosen gender identity in official documents on medical procedures and treatment. See id. at paras. 68-69, 75-77. Read more

Following Three Decades of Isolation, Morocco Rejoins African Union

African Union Summit in Addis Ababa, Ethiopia
Credit: UN Photo/Eskinder Debebe

After more than 30 years of separation, Morocco has officially been admitted back in to the African Union (AU), the continent’s largest intergovernmental organization. [New York Times; Reuters] Morocco quit the African Union’s predecessor, the Organization of African Unity, in 1984 after the regional bloc officially recognized Sahrawi Arab Democratic Republic (Western Sahara) as a member. [BBC: Morocco] After a reported 39 to 9 vote at the 28th African leader’s summit in Addis Ababa, Ethiopia on January 30, 2017, Morocco became the 55th member of the AU despite some opposition concerning its position on Western Sahara, a territory that Morocco considers part of its historic land. [Guardian; Reuters; Al Jazeera] Morocco also boasts a 110 billion-dollar economy, one of Africa’s largest, and its membership in the regional bloc could mean economic opportunity for the AU. [Reuters] Read more

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