of human rights(…) It also calls for measures to put a stop to arbitrary interference in the
privacy of individuals and to prevent future abuses in that respect.562
150. As far as freedom of expression is concerned, the violation of the privacy of
communications can give rise to a direct restriction when—for example—the right cannot be
exercised anonymously as a consequence of the surveillance activity. In addition, the mere
existence of these types of programs leads to an indirect limitation that has a chilling effect
on the exercise of freedom of expression.563 Indeed, the violation of the privacy of
communications makes people cautious of what they say and—therefore—of what they do;
it instills fear and inhibition as part of the political culture, and it forces individuals to take
precautions in communicating with others. Moreover, the people most affected are those
who take unpopular positions, or the members of political, racial, or religious minorities who
are often unjustifiably classified as “terrorists,” which makes them the object of surveillance
and monitoring without proper oversight.564 A democratic society requires that individuals
be able to communicate without undue interference, which means that their communications
must be private and secure.565
311. In the same Report and with respect to the requirements that must be fulfilled by possible interceptions
so that they do not constitute arbitrary and abusive limitations and interference in such rights, after
remembering the criteria of legality, imperative purpose, necessity and proportionality, the following was
indicated with respect to each one from them:
154. As this Office of the Special Rapporteur has already indicated, clandestine espionage
conducted unlawfully or without legal support is an act that is highly offensive to
fundamental rights and seriously compromises the actions of the State, its international
responsibility, and even the very basis of democracy.566
Nevertheless, the existence of a law is not enough for a program to be legitimate. As
previously mentioned, vague or ambiguous legal provisions that grant very broad
discretionary powers are incompatible with the American Convention, because they can
serve as the basis for potential arbitrary acts that translate into violations of the right to
privacy or the right to freedom of thought and expression guaranteed by the Convention.567
United Nations. General Assembly. Resolution adopted by the General Assembly on December 18, 2013. 68/167. The right to privacy
in the digital age. A/RES/68/167. January 21, 2014. Available for consultation at: http://www.un.org/Depts/dhl/resguide/r68_en.shtml;
General Assembly. Department of Public Information. General Assembly Adopts 68 Resolutions, 7 Decisions as It Takes Action on Reports of
Its Third Committee.
563 United Nations. General Assembly. Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion
and expression, Frank La Rue. A/HRC/17/27. May 16, 2011. Para. 53 and 55. Available for consultation at:
http://ap.ohchr.org/documents/dpage_e.aspx?m=85; United Nations. General Assembly. Report of the Special Rapporteur on the
promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin. A/HRC/13/37.
December 28, 2009. Para. 33. Available for consultation at: http://www.ohchr.org/EN/Issues/Terrorism/Pages/Annual.aspx
564 IACHR. Report on Terrorism and Human Rights. Chapter III (Norms and Principles of International Human Rights and Humanitarian
Law Applicable in Terrorist Situations). OEA/Ser.L/V/ll.116 Doc. 5 rev. 1 corr. October 22, 2002. Para. 371; United Nations. General
Assembly. Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La
Rue. A/HRC/17/27. May 16, 2011. Para. 54, 79 and 89. Available for consultation at: http://ap.ohchr.org/documents/dpage_e.aspx?m=85
565 United Nations. General Assembly. Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion
and expression, Frank La Rue. A/HRC/23/40. April 17, 2013. Para. 23. Available for consultation at:
http://ap.ohchr.org/documents/dpage_e.aspx?m=85
566 United Nations Special Rapporteur on the Protection and Promotion of the Right to Freedom of Opinion and Expression and Special
Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights. June 21, 2013. Joint Declaration on
surveillance programs and their impact on freedom of expression. Point 10; IACHR. Annual Report 2009. Annual Report of the Office of the
Special Rapporteur for Freedom of Expression. Chapter II (Evaluation of the State of Freedom of Expression in the Hemisphere).
OEA/Ser.L/V/II. Doc. 51. December 30, 2009. Para. 135 et seq.; IACHR. Annual Report 2010. Annual Report of the Office of the Special
Rapporteur for Freedom of Expression. Chapter II (Evaluation of the State of Freedom of Expression in the Hemisphere). OEA/Ser.L/V/II.
Doc. 5. March 7, 2011. Para. 140 et seq.; IACHR. Democracy and Human Rights in Venezuela. Chapter VI (The Right to Life, to Humane
Treatment, and to Personal Liberty and Security). OEA/Ser. L/V/II. Doc. 54. December 30, 2009. Para. 703.
567 IACHR. Annual Report 2009. Annual Report of the Office of the Special Rapporteur for Freedom of Expression. Chapter III (InterAmerican Legal Framework of the Right to Freedom of Expression). OEA/Ser.L/V/II. Doc. 51. December 30, 2009. Para. 71.
562
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