Government-led Digital Surveillance

Communications surveillance(1) encompasses the monitoring, intercepting, collecting, obtaining, analysing, using, preserving, retaining, interfering with, accessing or similar actions taken with regard to information that includes, reflects, arises from or is about a person’s communications in the past, present, or future.(2) This relates to both the content of communications and communication metadata – which is information about a communication, such as the identities of the parties, the time or duration or location of the communication, and technical services used. It has been noted that even communication metadata can give detailed insights into an individual’s behaviour, social relationships, private preferences and identity. Taken as a whole, it may allow very precise conclusions to be drawn concerning the private life of the person.

In recent years, the use of sophisticated surveillance technology on mobile phones has gained increasing prominence amidst concerns about its extensive abuse to monitor political opponents and activists. In 2021, news broke that at least 180 journalists had been targeted for surveillance by the Pegasus spyware, a system that can be remotely installed on a smartphone enabling complete control over the device.(3) The news attracted widespread condemnation, including, for example, through an order of the Supreme Court of India in 2021 that ordered an independent inquiry into allegations that the government deployed the Pegasus spyware against various journalists, politicians, and dissidents because of the deeply chilling effects its use could have on freedom of expression.(4)

General Comment No. 16 provides that “[s]urveillance, whether electronic or otherwise, interceptions of telephonic, telegraphic and other forms of communication, wire-tapping and recording of conversations should be prohibited”.(5) Surveillance — both bulk (or mass) collection of data(6) or targeted collection of data — interferes directly with the privacy and security necessary for freedom of opinion and expression, and must be considered against the three-part test to assess the permissibility of the restriction.(7) In the digital age, ICTs have enhanced the capacity of governments, corporations and individuals to conduct surveillance, interception and data collection, and have meant that the effectiveness in conducting such surveillance is no longer limited by scale or duration.(8) In Africa, some countries have even passed legislation enabling digital surveillance of targeted groups; for example the United Nations Special Rapporteur on Privacy has noted with concern the Anti-Cybercrime Law enacted in Egypt in 2018 which reportedly enables surveillance of the LGBTQI community.(9)

In a resolution adopted by the UN General Assembly (UNGA) on the right to privacy in the digital age, the UNGA emphasised that unlawful or arbitrary surveillance and/or interception of communications, as well as the unlawful or arbitrary collection of personal data are highly intrusive acts, violate the right to privacy, can interfere with the right to freedom of expression and may contradict the tenets of a democratic society, including when undertaken on a mass scale.(10) It noted further that surveillance of digital communications must be consistent with international human rights obligations and must be conducted on the basis of a legal framework, which must be publicly accessible, clear, precise, comprehensive and non-discriminatory.(11)

In order to meet the condition of legality, many states have taken steps to reform their surveillance laws to allow for the powers required to conduct the surveillance activities.  According to the Necessary and Proportionate Principles, , a civil society initiative to document the principles that apply to any limitation on freedom of expression, communications surveillance should be regarded as a highly intrusive act, and in order to meet the threshold of proportionality, the state should be required at a minimum to establish the following information to a competent judicial authority prior to conducting any communications surveillance:(12)

• There is a high degree of probability that a serious crime or specific threat to a legitimate aim has been or will be carried out.
• There is a high degree of probability that evidence relevant and material to such a serious crime or specific threat to a legitimate aim would be obtained by accessing the protected information sought.
• Other less invasive techniques have been exhausted or would be futile, such that the technique used is the least invasive option.
• Information accessed will be confined to that which is relevant and material to the serious crime or specific threat to a legitimate aim alleged.
• Any excess information collected will not be retained, but instead will be promptly destroyed or returned.
• Information will be accessed only by the specified authority and used only for the purpose and duration for which authorisation was given.
• The surveillance activities requested and techniques proposed do not undermine the essence of the right to privacy or of fundamental freedoms.

Surveillance constitutes an obvious interference with the right to privacy.  Further, it also constitutes an interference on the right to hold opinions without interference and the right to freedom of expression. With particular reference to the right to hold opinions without interference, surveillance systems, both targeted and mass, may undermine the right to form an opinion, as the fear of unwilling disclosure of online activity, such as search and browsing, likely deters individuals from accessing information, particularly where such surveillance leads to repressive outcomes.(13)

The interference with the right to freedom of expression is particularly apparent in the context of journalists and members of the media who may be placed under surveillance as a result of their journalistic activities. The disclosure or surveillance of journalistic sources can have negative consequences for the right to freedom of expression due to a breach of an individual’s confidentiality in their communications.(14) This is the same for cases concerning the disclosure of anonymous user data. Once confidentiality is undermined, it cannot be restored. It is therefore of utmost importance that measures that undermine confidentiality are not taken arbitrarily.

The importance of source protection has been well-established. For example, in Bosasa Operation (Pty) Ltd v Basson and Another, the South Africa High Court held that journalists are not required to reveal their sources, subject to certain exceptions.(15)

The court stated in this regard that:

“If indeed freedom of the press is fundamental and sine qua non for democracy, it is essential that in carrying out this public duty for the public good, the identity of their sources should not be revealed, particularly, when the information so revealed, would not have been publicly known.  This essential and critical role of the media, which is more pronounced in our nascent democracy, founded on openness, where corruption has become cancerous, needs to be fostered rather than denuded.”(16)

Surveillance activities carried out against journalists have the risk of fundamentally undermining the source protection to which journalists are otherwise entitled.(17)

The linkages between journalistic freedoms and the right to privacy are a common theme in emerging litigation and jurisprudence against unlawful or abusive surveillance. For example:

• In South Africa, the Constitutional Court in 2021 declared various provisions of the domestic surveillance law to be unconstitutional as a result of a complaint brought by an investigative journalist whose communications had been monitored by intelligence officials; the Court ordered a range of amendments to improve transparency, safeguards, and oversight mechanisms state surveillance operations.(18)

• The Supreme Court of India, in ordering an independent inquiry into allegations that the government deployed the ‘Pegasus’ spyware against various journalists, politicians and dissidents, found that the free press’s democratic function was at stake, and that “such chilling effect on the freedom of speech is an assault on the vital public watchdog role of the press, which may undermine the ability of the press to provide accurate and reliable information.”(19)

• The European Court of Human Rights found some aspects of the United Kingdom’s mass surveillance regime to be in violation of the right to privacy and the right to freedom of expression under the European Convention on Human Rights, holding that although bulk interception regimes are not in themselves incompatible with those rights, the lack of independent oversight and the fact that the regime’s use was not limited to combatting “serious crime” and did not sufficiently protect journalists’ confidential communication resulted in it constituting a violation.”(20)

• In a similar thread, in 2022, Media Defence filed a series of complaints at the European Court of Human Rights concerning the Azerbaijan government’s apparent use of the Pegasus software to target Azeri journalists.(21)

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