Back to main site

    Government surveillance

    Module 2: Digital attacks and Online Gender-Based Violence

    Overview

    • Forms: Government surveillance of journalists can occur in both mass and targeted forms. In the former, all communications of a population are monitored in order to identify trends or specific incidents for further investigation. In the latter, a particular individual or set of individuals will be targeted to have their communications intercepted and monitored.
    • Justification: State surveillance and interception of communications, and the accompanying processing of personal data, are usually conducted in the context of law enforcement and justified by the need to uphold national security, public order, and public morals.(1)
    • Targets: The Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression has emphasised that targeted surveillance appears to be widely used to target journalists, with severe consequences for media freedom and the safety of journalists.”(2)
    • Anonymity and encryption: Surveillance is intricately connected with the issues of anonymity and encryption, in that surveillance technologies often bypass encryption protections which are central to journalists’ ability to conduct their work safely.
    • Regional impact: Civil society organisations from SSA have noted that, in the region, “targeted surveillance against… media is growing, and is carried out in complex collaboration between government, the private sector and foreign governments” and that transparency gaps, weak legislative protections, and capacity gaps at the regulator, judiciary, and lawyer levels all contribute to the continued exposure and vulnerability of journalists, leading to “a chilling effect on their use of technology to assert their rights and freedoms.”(3)

    International law and standards

    Both mass and targeted surveillance have the potential to severely impact several human rights, including the rights to privacy, data protection, and freedom of expression, among others:(4)

    • Privacy: Unless undertaken lawfully, proportionately and necessarily, these acts “represent infringements of the human right to privacy.”(5) The UNHRC has also observed that surveillance should only be used “in accordance with the human rights principles of lawfulness, legitimacy, necessity and proportionality and that legal mechanisms of redress and effective remedies [must be] available for victims of surveillance-related violations and abuses.”(6)
    • Freedom of expression: As observed by ARTICLE 19 Eastern Africa, “while protections against arbitrary or unlawful surveillance have focused on guaranteeing the right to privacy, these interferences also have a chilling effect on the rights to freedom of expression and information, and assembly and association.”(7)
    • Media freedom: In 2022, the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression also observed that the “safe and free practice of journalism in the digital age is impacted by three major contemporary threats, including impunity for crimes against journalists; gender-based online attacks; and targeted digital surveillance.”(8) Further, the targeted surveillance of journalists also risks the confidentiality of journalistic sources, which is a cornerstone of the profession and firmly solidified in international human rights law.(9)
    • Safety: The UNHRC, in its Resolution on the Safety of Journalists, has emphasised that journalists face “particular risks with regard to [their safety]… including the particular vulnerability of journalists to becoming targets of unlawful or arbitrary surveillance and/or the interception of communications…in violation of their rights to privacy and to freedom of expression.”(10)

    At the regional level:

    • The Malabo Convention is the primary regional standard relating to violations of privacy and prescribes steps that states should take to legislate matters including surveillance.(11)
    • The African Declaration, under Principle 25 (3), categorically prohibits communications surveillance except where such surveillance is ordered by an impartial and independent court and is subject to appropriate safeguards.(12) Principle 40 also prohibits indiscriminate and untargeted surveillance of individuals’ communications. Further, targeted communication surveillance is only permitted where this is “authorised by law… that conforms with international human rights law and standards, and that is premised on specific and reasonable suspicion that a serious crime has been or is being carried out or for any other legitimate aim.”(13)

    National laws

    Many countries, particularly in SSA, have struggled to structure and build the competence necessary to have meaningful oversight over surveillance capabilities. As such, the UN Special Rapporteur on the Right to Privacy has observed that there is an “imbalance between global surveillance capabilities and national oversight mandates,” resulting in weakened privacy protections for journalists against targeted state-led surveillance.(14)

    As countries in the region increasingly invest in a wide range of sophisticated surveillance technologies that can track many things beyond communications, including, for example, an individual’s real-time movements and transactions,(15) there is an urgent need for oversight and regulation to be augmented.

    Government Surveillance in South Africa

    In 2018, the Right2Know Campaign published documentation of rampant and unchecked government surveillance of journalists in South Africa,(16)  observing that ‘journalists in South Africa have been a particular target for state spying, and more recently, even private-sector spying.(17) This seems to be especially true for journalists who have uncovered corruption, state capture, and abuse of power and in-fighting in agencies like the National Prosecuting Authority (NPA), the State Security Agency (SSA), the Crime Intelligence Division of the police, and the Hawks.’

    Since then, litigation has revealed extensive government surveillance of activists and civil society organisations in the country(18) and the President appointed a High-Level Review Panel on the State Security Agency to, among other things, interrogate the state of the agency’s surveillance capabilities, its appropriateness, and oversight mechanisms. The Panel found that there had been:  

    “a serious politicisation and factionalisation of the intelligence community over the past decade or more, based on factions in the ruling party, resulting in an almost complete disregard for the Constitution, policy, legislation and other prescripts, and turning our civilian intelligence community into a private resource to serve the political and personal interests of particular individuals.”(19)

    In addition, and as detailed further below, a constitutional challenge to the country’s communications surveillance law, the Regulation of Interception of Communications Act (RICA), was successfully upheld by the Constitutional Court in 2021.(20)

    Researchers are now conducting research on the state of surveillance laws across southern Africa as well as the efficacy and challenges of oversight mechanisms in these jurisdictions, seeking to apply the lessons from the RICA judgment to other countries in the region.(21)

    Concerningly, the challenge of legal imprecision poses a major challenge in the SSA region, with permissible grounds for government surveillance in law, such as national security, either being insufficiently defined or inconsistently applied, “providing scope for abuse of power and making legal challenges practically impossible.”(22) Despite this, legal challenges contesting government surveillance targeting journalists in the SSA region have been instituted before national and regional courts with varying degrees of success.

    Regulating Government Surveillance in Kenya

    Generally, arbitrary and illegal government surveillance against journalists can be contested by relying on several different safeguards, as demonstrated below by the example of Kenya.  

    1. Safeguards in national constitutions, such as the right to privacy;  
      The right to privacy in Article 31 of the Constitution of Kenya, 2010, has been upheld by the Kenyan judiciary in the context of surveillance, including in Kenya Legal and Ethical Network on HIV & AIDS (KELIN) & others v Cabinet Secretary Ministry of Health & others (2015) in which it was held that the government’s directive to collect data on HIV-positive people violated the right to privacy under the Constitution of Kenya, 2010.  
    2. Safeguards in dedicated surveillance laws:
      Although there is no specific surveillance law in Kenya, several laws, and regulations touch on communications surveillance. For example, the Information and Communications Act, 2009, prohibits licensed telecommunications operators from intercepting communications while the Information and Communications (Registration of Subscribers of Telecommunication Services) Regulations grant extensive powers to state authorities to collect and access the data of mobile phone users.(23)  
    3. Safeguards in data protection laws:
      Kenya’s Data Protection Act, 2019 provides that any state entity handling data subjects’ information (i.e., personal information or sensitive personal information) must ensure conformity with Section 25 on the ‘Principles of Data Protection’ and with Section 26 on the ‘Rights of a Data Subject,’ which provide limits on the manner in which data subjects’ data, including journalists’ personal data, may be collected, processed and stored.(24) The Data Protection Act was tested in court in the context of surveillance in the matter of Ondieki V Maeda (2023) in which the High Court held that the installation of CCTV cameras by a private person violated the petitioner’s right to privacy and rights as a data subject under the DPA. However, the decision has been criticised for being inconsistent with the Act, and it is clear that further consideration by the courts will be needed to provide greater clarity on these issues.(25)  

    Litigating Government Surveillance: South Africa

    The amaBhungane Centre for Investigative Journalism instituted a petition in the High Court of South Africa after information surfaced that the confidential communications of a journalist, Sam Sole, had been intercepted by state agencies.

    The petition challenged the constitutionality of various provisions of RICA that permitted the interception of communications of any person by authorised state officials subject to prescribed conditions as well as the admitted practice of the State in conducting ‘bulk interceptions’ of telecommunications traffic.

    The High Court held several sections of the law unconstitutional and invalid on the basis that they:

    • Failed to prescribe a procedure for notifying the subject of the interception;
    • Failed to prescribe an appointment mechanism and terms for the designated oversight judge which would ensure the judge’s independence;
    • Did not adequately provide for appropriate safeguards to deal with the fact that the orders in question are granted ex parte;
    • Did not prescribe proper procedures to be followed when state officials are examining, copying, sharing, sorting through, using, destroying and/or storing the data obtained from interceptions; and
    • Failed to expressly address circumstances in which a subject of surveillance is either a practising lawyer or a journalist.

    The Court also declared that the bulk surveillance activities and foreign signals interception undertaken by the National Communications Centre were unlawful and invalid.

    The order was subsequently upheld by the Constitutional Court in 2021.(26)

    Footnotes

    1. UN Human Rights Office of the High Commissioner, ‘The Corporate Responsibility to Respect Human Rights’, (2012) (accessible at https://www.ohchr.org/sites/default/files/Documents/Publications/HR.PUB.12.2_En.pdf). Back
    2. UNHRC, ‘Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression on Reinforcing media freedom and the safety of journalists in the digital age’ (2022) (accessible at https://documents-dds-ny.un.org/doc/UNDOC/GEN/G22/323/44/PDF/G2232344.pdf?OpenElement) (UNSR on FreeEx Report on the safety of journalists in the digital age). Back
    3. CSRG, ICNL & CIPESA, ‘Digital Space and the Protection of Freedoms of Association and Peaceful Assembly in Africa’ (2019) (accessible at https://cipesa.org/?wpfb_dl=295). Back
    4. UNHRC, ‘Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression: Surveillance and human rights:’ (2019) (accessible at https://undocs.org/Home/Mobile?FinalSymbol=A/HRC/41/35&Language=E&DeviceType=Desktop&LangRequested=False). Back
    5. UNHRC, ‘Right to privacy: Report of the Special Rapporteur on the right to privacy’, 16 October 2019 (accessible at https://undocs.org/Home/Mobile?FinalSymbol=A/HRC/40/63&Language=E&DeviceType=Desktop&LangRequested=False). Back
    6. UNHRC Resolution on the safety of journalists above n 115. Back
    7. ARTICLE 19 Eastern Africa, ‘Unseen Eyes, Unheard Stories’ (2021) (accessible at https://www.article19.org/wp-content/uploads/2021/04/ADRF-Surveillance-Report-1.pdf. Back
    8. UNSR on FreeEx Report on the safety of journalists in the digital age above n 128. Back
    9. Id. Back
    10. UNHRC Resolution on the safety of journalists above n 115. Back
    11. Id. Back
    12. Declaration of Principles on Freedom of Expression and Access to Information in Africa above n 50. Back
    13. Id. Back
    14. Ann Väljataga, ‘UN Special Rapporteur on Privacy Calls for an International Treaty and a Specialised Oversight Body on Cyber Surveillance’ (accessible at https://ccdcoe.org/incyder-articles/un-special-rapporteur-on-privacy-calls-for-an-international-treaty-and-a-specialised-oversight-body-on-cyber-surveillance/). Back
    15. Institute of Development Studies, ‘Surveillance Law in Africa: a review of six countries’ (2021) (accessible at https://opendocs.ids.ac.uk/opendocs/bitstream/handle/20.500.12413/16893/Roberts_Surveillance_Law_in_Africa.pdf?sequence=1&isAllowed=y). Back
    16. Right2Know Campaign, ‘Spooked: Surveillance of Journalists in SA’ (2018) (accessible at https://www.r2k.org.za/wp-content/uploads/R2K-Surveillance-of-Journalists-Report-2018-web.pdf). Back
    17. Right2Know, ‘Stop the Surveillance: Activist Guide to RICA & State Surveillance in SA,’ (2018) (accessible at https://www.r2k.org.za/wp-content/uploads/R2K-Handbook-Rica-Surveilance-2017.pdf). Back
    18. Greenpeace, ‘Greenpeace Africa withdraws from state spying case after SSA disclosure,’ (2023) (accessible at https://www.greenpeace.org/africa/en/press/54054/greenpeace-africa-withdraws-from-state-spying-case-after-ssa-disclosure/). Back
    19. ‘Report of the High-Level Review Panel on the SSA,’ (2018) (accessible at https://www.gov.za/sites/default/files/gcis_document/201903/high-level-review-panel-state-security-agency.pdf). Back
    20. amaBhungane Centre for Investigative Journalism NPC and Another v Minister of Justice and Correctional Services and Others, 16 September 2019 (accessible at https://www.saflii.org/za/cases/ZACC/2021/3.html) Back
    21. See various pieces of research by Intelwatch Back
    22. Institute of Development Studies, ‘Surveillance Law in Africa: a review of six countries’ (2021) (accessible at https://opendocs.ids.ac.uk/opendocs/bitstream/handle/20.500.12413/16893/Roberts_Surveillance_Law_in_Africa.pdf?sequence=1&isAllowed=y). Back
    23. Privacy International and the National Coalition of Human Rights Defenders in Kenya, ‘Universal Periodic Review Stakeholder Report: 21st Session, Kenya: The Right to Privacy in Kenya,’ (2015) (accessible at https://privacyinternational.org/sites/default/files/2017-12/UPR Kenya.pdf). Back
    24. The Data Protection Act of 2019 (accessible at http://www.kenyalaw.org:8181/exist/kenyalex/actview.xql?actid=No. 24 of 2019). Back
    25. Bowmans, ‘Kenya: The High Court And The Office Of The Data Protection Commissioner Issue Decisions On Complaints And The Right To Privacy In The Use Of CCTV Cameras,’ (2023) (accessible at https://bowmanslaw.com/insights/data-protection/kenya-the-high-court-and-the-office-of-the-data-protection-commissioner-issue-decisions-on-complaints-and-the-right-to-privacy-in-the-use-of-cctv-cameras/). Back
    26. amaBhungane Centre for Investigative Journalism NPC and Another v Minister of Justice and Correctional Services and Others, 16 September 2019 (accessible at https://www.saflii.org/za/cases/ZACC/2021/3.html) Back