ICCL submitted a report on online content moderation to the Department of Communications on 15 April 2019. In it we assert that fundamental rights, including to privacy and to free expression, apply as much online as they do off. We identify some difficulties and present recommendations for their resolution.
17th September 2018
The Irish Council for Civil Liberties (ICCL) is seriously concerned by the Minister for Justice’s suggestion on the radio this morning that he supports legislation to outlaw the photographing of Gardai acting in the course of their duties.
While the criminal harassment or intimidation of Gardai is unacceptable, the general outlawing of photographing Gardai while on duty would be a grossly disproportionate response to the incidents that arise where technology is misused. A blanket restriction on freedom of expression, which would criminalise ordinary members of the public for sharing information about public events, is not the answer to the challenges that Gardai are called to deal with on a daily basis.
Only a week ago, we witnessed the importance of public access to images of Gardai on duty. The circulation of photographs of masked Gardai at the scene of a housing rights protest prompted widespread public debate about how An Garda Siochana goes about the policing of protest. The photographs led to a statement by the new Garda Commissioner that the Gardai had not acted in accordance with their own policies, and to the Garda Commissioner requesting a report on the incident. The events of last week demonstrate exactly why the Minister is wrong to suggest that this crucial mechanism of transparency should be outlawed.
As the ICCL has stated before, the rights to peaceful protest are fundamental to our democracy. These are the rights to freedom of belief, expression, association and assembly, and they are protected not only by the Irish Constitution but also by European and international human rights instruments to which Ireland is party.
An Garda Siochana is obliged to protect and facilitate individuals’ use of their rights to peacefully protest. Gardai are also obliged to police protest in a manner that only uses force to the degree that is absolutely necessary and proportionate.
The ability to record police operations during public protest is an essential safeguard to ensure that the Gardai comply with their human rights obligations. Transparency also protects police, in that it provides them with an avenue to demonstrate how they acted to uphold the law in difficult situations.
Time and time again, both in Ireland and abroad, we have witnessed how recordings of police behaviour during protests has helped to shine a light on violations of human rights obligations by police actors, and indeed violations of the law by private individuals where they occur. In many countries, police representatives are now required to wear body cameras themselves in order to ensure that they are accountable, and indeed protected, in their actions.
The Organization for Security and Cooperation in Europe (OSCE) has published Guidelines on Freedom of Peaceful Assembly which explain States’ obligations under the European Convention on Human Rights as established in ECHR case law.
The OSCE Guidelines state that:
The photographing or video recording of the policing operation by participants and other third parties should not be prevented, and any requirement to surrender film or digitally recorded images or footage to the law-enforcement agencies should be subject to prior judicial scrutiny.
During public assemblies the photographing or video recording of participants by law-enforcement personnel is permissible. However, while monitoring individuals in a public place for identification purposes does not necessarily give rise to interference with their right to private life, the recording of such data and the systematic processing or permanent nature of the record created and retained might give rise to violations of privacy. Moreover, photographing or making video recordings of assemblies for the purpose of gathering intelligence can discourage individuals from enjoying the freedom to assemble and should, therefore, not be done routinely.
Law-enforcement agencies should develop and publish a policy related to their use of overt filming/photography at public assemblies.
The UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression has issued several reports calling attention to the increasing problem of arrests, censorship and violence towards ‘citizen journalists’ around the world. Reminding States of their obligation to respect the right to freedom of expression, the Special Rapporteur has stated:
Imprisoning individuals for seeking, receiving and imparting information and ideas can rarely be justified as a proportionate measure to achieve one of the legitimate aims under article 19, paragraph 3, of the International Covenant on Civil and Political Rights.
… protection of national security or countering terrorism cannot be used to justify restricting the right to expression unless the Government can demonstrate that: (a) the expression is intended to incite imminent violence; (b) it is likely to incite such violence; and (c) there is a direct and immediate connection between the expression and the likelihood or occurrence of such violence.
Additionally, the Special Rapporteur reiterates that the right to freedom of expression includes expression of views and opinions that offend, shock or disturb. Moreover, as the Human Rights Council has also stated in its resolution 12/16, restrictions should never be applied, inter alia, to discussion of Government policies and political debate; reporting on human rights, Government activities and corruption in Government; engaging in election campaigns, peaceful demonstrations or political activities, including for peace or democracy; and expression of opinion and dissent, religion or belief, including by persons belonging to minorities or vulnerable groups.
The Special Rapporteur has further stated about citizen journalists that:
The importance of this new form of journalism cannot be underestimated… citizen journalists contribute to the creation of a richer diversity of views and opinions, including information about their communities and groups in need of particular attention.
Strasbourg, 14 September 2018
In a landmark win for seven INCLO members, the European Court of Human Rights (ECtHR) ruled that the United Kingdom’s mass surveillance practices violate privacy and freedom of expression.
Led by Liberty, seven INCLO members joined a coalition of non-governmental organizations (NGOs) in Strasbourg, France to challenge the legality of British and US intelligence agencies intercepting private communications en masse.
We initiated this case after Edward Snowden’s courageous 2013 revelations of the full extent our governments are willing to spy on us without reasonable suspicion.
Today, we celebrate the court’s historic findings that the UK’s system of communications interception was an unlawful breach of privacy. The UK’s regime for authorising mass interception was incapable of keeping their privacy “interference” to what is “necessary in a democratic society.”
INCLO parties in the case
The INCLO members joining a coalition of NGOs included:
Liberty, American Civil Liberties Union (ACLU), Canadian Civil Liberties Association (CCLA), Egyptian Initiative for Personal Rights (EIPR), Hungarian Civil Liberties Union (HCLU), Irish Council for Civil Liberties (ICCL), Legal Resources Centre South Africa (LRC).
Megan Goulding, Lawyer for Liberty, said:
“This is a major victory for the rights and freedom of people in the UK. It shows that there is – and should be – a limit to the extent that states can spy on their citizens. Our Government has built a surveillance regime more extreme than that of any other democratic nation, abandoning the very rights and freedoms terrorists want to attack. It can and must give us an effective, targeted system that protects our safety, data security and fundamental rights.”
Patrick Toomey, staff attorney, ACLU National Security Project, said:
“In a significant victory for privacy and free expression, the European Court of Human Rights has ruled that the UK government’s mass surveillance activities violate fundamental human rights standards. The decision sends a clear message that similar surveillance programs, such as those conducted by the NSA, are also incompatible with human rights. Governments in Europe and the United States alike must take steps to reign in mass spying and adopt long overdue reforms that truly safeguard our privacy.”
Michael Bryant, Executive Director for the CCLA, said:
“CCLA is proud to share this victory for privacy and free expression rights with our colleagues around the world. Today’s decision at the ECtHR confirms that mass surveillance is incompatible with fundamental rights that are at the heart of strong democracies. Although the case addressed activities in the UK, this is a global issue that affects every nation and every person who communicates online. Canada now needs to look carefully at our own new national security legislation to ensure that our laws uphold the vital privacy and free expression principles at the center of this decision.”
Stefania Kapronczay, Executive Director for the HCLU, said:
“As a member of an international human rights network, the HCLU is thrilled to celebrate this milestone in privacy rights. Ever since Edward Snowden made visible the secretive nature of communications interception by government intelligence agencies, INCLO has been steadfastly advocating against this opaque practice. The court decision today is a vindication of all INCLO members’ efforts – and for privacy activists around the globe.”
Elizabeth Farries, Information Rights Project Manager for the ICCL, said:
“Why should we have to hide from snooping governments? Recognised under numerous instruments, treaties and international norms, privacy is our foundational right upon which many of our associated freedoms operate. The decision in Strasbourg recognises in part what INCLO’s Unanswered Questions – International Intelligence Sharing report also observes: Across INCLO member countries there are inadequate rules guiding the operation of state intelligence agencies.”
Tsanga Mukumba, Openness & Accountability Researcher for the LRC, said:
“Communications from an LRC email address were intercepted by the GCHQ in breach of our privacy rights under Article 8 of the European Convention on Human Rights. The LRC represents some of the most vulnerable clients in South Africa; their right to confidentiality was violated. We applaud the Strasbourg ruling that UK laws enabling mass surveillance are a violation of Article 8 and look forward to using this important precedent to advance the right to privacy across Africa.”
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