29103

to varying degrees, the right to respect for private life. To be lawful, they must be justified as
prescribed by law, necessary in a democratic society, and proportionate.667 Techniques that
must be justified on these bases include:

• collection and systematic retention of private information by state security services;668
• closed circuit television schemes where any images are recorded, processed and stored;669
• use of tracking devices; and
• collecting samples such as fingerprints and DNA.670

Surveillance operations require independent, preferably judicial, supervision.671

If traditional policing methods are capable of responding to an identified threat, more inva-
sive interferences with privacy should be avoided. The general principles to be observed are
as follows:

• The expression “private life” must not be interpreted restrictively: it includes the right to
establish and develop relationships with other human beings and also activities of a profes-
sional or business nature.672

• The existence of some legislation granting powers of secret surveillance over the mail, post
and telecommunications can be, under exceptional conditions, necessary in a democratic

667 ECtHR, Malone v. UK, Application no. 8691/79, 2 August 1984, para. 65 and ECtHR, Halford v. UK, Case no. 201
73/1996/692/884, 27 May 1997, paras. 49-60.

668 This is particularly so in respect of information concerning an individual’s distant past. Retention of personal data is
different from collection, and must be separately justified, see ECtHR, Rotaru v. Romania, Application no. 28341/95,
4 May 2000, para. 43.

669 ECtHR, Peck v. UK, Application no. 44647/98, 28 January 2003, paras. 76-87.
670 “In the case-law of the Convention organs, both the storing and release of information relating to an individual’s

private life in a secret police register have been found to constitute an interference with the person’s right to respect
for his private life […] Furthermore, a compulsory public census, including questions relating to personal details of
the inhabitants of a particular household, or the requirement, pursuant to the relevant tax legislation, to produce a
list of one’s private expenditure amount to such an interference […] The examination of a person in the course of his
detention, including measures such as his search, questioning about his private life, taking of fingerprints and pho-
tographs, and the retention of the records of this examination, was also regarded as interference with the person’s
right to respect for his private life […]”, ECommHR, Friedl v. Austria, Application no. 15225/89, 19 May 1994, para
46. Cf. also op. cit., note 472, ECtHR, Murray v. UK, para. 83-95.
671 “[…] relevant legislation must specify in detail the precise circumstances in which such interferences may be per-
mitted. A decision to make use of such authorized interference must be made only by the authority designated under
the law, and on a case-by-case basis. Compliance with article 17 requires that the integrity and confidentiality of
correspondence should be guaranteed de jure and de facto. Correspondence should be delivered to the addressee
without interception and without being opened or otherwise read. Surveillance, whether electronic or otherwise,
interceptions of telephonic, telegraphic and other forms of communication, wire-tapping and recording of conver-
sations should be prohibited. Searches of a person’s home should be restricted to a search for necessary evidence and
should not be allowed to amount to harassment”, HRC, General Comment No. 16 (The right to respect of privacy,
family, home and correspondence, and protection of honour and reputation (Art. 17)), 8 April 1988, para. 8.
672 ECtHR, Amann v. Switzerland, Application no. 27798/95, 16 February 2000, para. 44; op. cit., note 668, ECtHR,
Rotaru v. Romania, para. 43.

Countering Terrorism, Protecting Human Rights

society in the interests of national security and/or for the prevention of disorder or crime.
However, the legislation at issue must be accessible and foreseeable as to its effects.673
• The law must indicate the degree of the discretion conferred on the competent authorities
and the manner of its exercise with adequate precision.674
• States do not enjoy an unlimited discretion to subject persons within their jurisdiction
to secret surveillance. The European Court has affirmed that states may not, in the name
of the struggle against espionage and terrorism, adopt whatever measures they deem ap-
propriate. The Court has pointed out that it must be satisfied that, whatever system of sur-
veillance is adopted, there exist adequate and effective guarantees against abuse. Whether
such guarantees are effective depends on all the circumstances of the case, such as the na-
ture, scope and duration of the measures, the grounds required for ordering the measures,
the authorities competent to permit, carry out and supervise such measures, and the kind
of remedy provided by the national law.675
• Legal safeguards should be established concerning the supervision of the relevant services’
activities. Supervision procedures must follow the values of a democratic society as faith-

673 “[…] the phrase ‘in accordance with the law’ does not merely refer back to domestic law but also relates to the quality
of the law, requiring it to be compatible with the rule of law, which is expressly mentioned in the preamble to the
Convention […] The phrase thus implies – and this follows from the object and purpose of Article 8 – that there
must be a measure of legal protection in domestic law against arbitrary interferences by public authorities with the
rights safeguarded by paragraph 1 […] Especially where a power of the executive is exercised in secret, the risks of
arbitrariness are evident […] Since the implementation in practice of measures of secret surveillance of communica-
tions is not open to scrutiny by the individuals concerned or the public at large, it would be contrary to the rule of
law for the legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently,
the law must indicate the scope of any such discretion conferred on the competent authorities and the manner of its
exercise with sufficient clarity, having regard to the legitimate aim of the measure in question, to give the individual
adequate protection against arbitrary interference”, op. cit., note 667, ECtHR, Malone v. UK, paras. 67-68. See also
op. cit., note 672, ECtHR, Amann v. Switzerland, paras. 55-56; op. cit., note 668, ECtHR, Rotaru v. Romania, para.
52; ECtHR, Silver and Others v. UK, Application no. 5947/72; 6205/73; 7052/75; 7061/75; 7107/75; 7113/75; 7136/75,
25 March 1983, paras. 86-88; op. cit., note 159, ECtHR, The Sunday Times v. UK, paras. 47-49. Moreover, “tapping
and other forms of interception of telephone conversations constitute a serious interference with private life and
correspondence and must accordingly be based on a ‘law’ that is particularly precise. It is essential to have clear,
detailed rules on the subject, especially as the technology available for use is continually becoming more sophisti-
cated”, ECtHR, Kopp v. Switzerland, Case no. 13/1997/797/1000, 25 March 1998, para. 72.

674 Op, cit., note 668, ECtHR, Rotaru v. Romania, para. 55. The HRC pointed out that “arbitrary interference can also
extend to interference provided for under the law. The introduction of the concept of arbitrariness is intended to
guarantee that even interference provided for by law should be in accordance with the provisions, aims and objec-
tives of the Covenant and should be, in any event, reasonable in the particular circumstances,” op. cit., note 671,
HRC, General Comment No. 16, para. 4.

675 ECtHR, Klass and Others v. Germany, Application no. 5029/71, 6 September 1978, paras. 49-50, and also para. 42;
ECtHR, Leander v. Sweden, Application no. 9248/81, 26 March 1987, para. 60; op. cit., note 667, ECtHR, Malone v.
UK, para. 81; op, cit., note 144, ECtHR, Chahal v. UK, para. 131 (“The Court recognises that the use of confidential
material may be unavoidable where national security is at stake. This does not mean, however, that the national
authorities can be free from effective control by the domestic courts whenever they choose to assert that national
security and terrorism are involved […] there are techniques which can be employed which both accommodate le-
gitimate security concerns about the nature and sources of intelligence information and yet accord the individual a
substantial measure of procedural justice”); and ECtHR, Tinnelly & Sons LTD and Others and McElduff and Others
v. UK, Case nos. 62/1997/846/1052-1053, 10 July 1998, para. 77.

202 Countering Terrorism, Protecting Human Rights



























































Internet users themselves. Such tools are commercially available and can be installed by
users.

Education

• As with any risks or threats, education is a crucial element in reducing their negative ef-
fects. This is equally true for the risk of terrorist usage of the Internet. Especially among
young Internet users, this educational potential has not been exploited to its full extent.
Education proves to be a better way of combating bad content than blocking or filtering.
An educated mind is the best “filter”.

• Education, media awareness activities and development of Internet literacy should be seen
as the most effective way of combating bad content, including crime, hate speech or incite-
ment to terrorist activities.

• The Internet also offers unique opportunities to promote tolerance and foster mutual un-
derstanding. This function of the Internet should not be forgotten in the discussion about
illegal usage and criminal content.

Right of access to information

In relation to the right of access to information, the European Court of Human Rights has
consistently held that Article 10(1) ECHR only gives the right to receive information that
people wish you to receive. As such, Article 10 cannot be relied upon to require the release of
information that the state does not wish to disclose.

Therefore, the refusal of the state to disclose a secret police register could not constitute an
interference with the applicant’s right to receive information, as he had no right to that infor-
mation and the state did not wish him to receive it.763 However, if an individual can show that
his or her private life is directly affected by the state’s refusal to provide information, a posi-
tive obligation under the right to respect for private life may oblige the state to provide the
information in question.764 Similarly, there have been violations of the state’s positive obliga-
tions in relation to private-life rights where there was a failure to provide essential informa-
tion that would enable the applicants’ to assess for themselves the necessary environmental
risks that they and their families ran by continuing to live in the area in which they did.765

763 “[…] the right to freedom to receive information basically prohibits a Government from restricting a person from
receiving information that others wish or may be willing to impart to him”, op. cit., note 675, ECtHR, Leander v.
Sweden, para. 74.

764 “In the Court’s opinion, persons in the situation of the applicant have a vital interest, protected by the Convention,
in receiving the information necessary to know and to understand their childhood and early development. On the
other hand, it must be borne in mind that confidentiality of public records is of importance for receiving objective
and reliable information, and that such confidentiality can also be necessary for the protection of third persons.
Under the latter aspect, a system like the British one, which makes access to records dependent on the consent of
the contributor, can in principle be considered to be compatible with the obligations under Article 8, taking into ac-
count the State’s margin of appreciation. The Court considers, however, that under such a system the interests of the
individual seeking access to records relating to his private and family life must be secured when a contributor to the
records either is not available or improperly refuses consent. Such a system is only in conformity with the principle
of proportionality if it provides that an independent authority finally decides whether access has to be granted in
cases where a contributor fails to answer or withholds consent. No such procedure was available to the applicant in
the present case”, ECtHR, Gaskin v. UK, Application no. 10454/83, 7 July 1989, para. 49.

765 Op. cit., note 138, ECtHR, Guerra and Others v. Italy, para. 60. Concerning the right to life, see op. cit., note 247,
ECtHR, L.C.B. v. UK, paras. 36-41.

232 Countering Terrorism, Protecting Human Rights

The Inter-American Court of Human Rights recently produced a judgment asserting the 233
existence of a full right of access to information held by governments and other bodies in
the public sphere.766 It was the first time that an international tribunal recognized explicitly
that:

[…] in a democratic society, it is essential that the State authorities are governed by the princi-
ple of maximum disclosure, which establishes the presumption that all information is acces-
sible, subject to a limited system of exceptions.767

These exceptions must be established by law, respond to a purpose allowed by the American
Convention, be necessary in a democratic society and proportionate.

The European Union Charter of Fundamental Rights (CFR) addresses the right of access to
information in a number of ways. The right to freedom of expression expressly includes free-
dom of information.768 There are also provisions guaranteeing a right of access to documents
of the EU Institutions769 and workers’ right to information.770

Truth

One element of freedom of expression is the need not to have to prove the truth of state-
ments, if the author has satisfied the standards of professional journalism in that the opinions
expressed are based, as far as can be established, on objective facts. To require otherwise
would undermine the value of free speech. Indeed, freedom of expression protects the right
to criticise, speculate, have opinions and make value judgements and is not limited to “true”
statements. This is particularly the case in relation to political expression or speech concern-
ing the public interest. Once statements are presented as fact, it must be established whether
the author acted in good faith and sought to verify a factual statement.

In a case in which an author was punished for the publication of a value judgement on the
grounds that its truth should have been, and had not been, proven, the Court found that his

766 IACtHR, Reyes et al. v. Chile, Judgement of 19 September 2006, paras. 58-102. In the case, a Chilean environmental
NGO requested information from the government on a massive logging project being undertaken by a foreign com-
pany. The NGO requested information on the company’s environmental record from the Chilean Foreign Invest-
ment Committee, a government body that assesses foreign investment proposals in Chile. The NGO’s request was
ignored by the Committee and subsequent appeals were summarily dismissed by Chilean courts. In March 2005,
the Inter-American Commission reached a decision on the merits and found that Chile had violated Article 13 of
the ACHR on the right to freedom of thought and expression. The case was subsequently referred to the Court for
adjudication. For a wider range of jurisprudence from the IACtHR on the right to freedom of thought and expres-
sion see, among others, IACtHR, López Álvarez v. Honduras, Judgement of 1 February 2006, Serie C No. 141, paras.
160-174 (liberty to speak minority languages in places of detention); IACtHR, Palamara Iribarne v. Chile, Judgement
of 22 November 2005 (Spanish only), Serie C No. 135, paras. 67-95 (prior censorship); IACtHR, Ricardo Canese v.
Paraguay, Judgement of 31 August 2004, Serie C No. 111, paras. 75-109 (freedom of expression during electoral
campaigns); IACtHR, Herrera Ulloa v. Costa Rica, Judgement of 2 July 2004, Serie C No. 107, paras. 108-136 (crimi-
nal sanctions to a journalist); IACtHR, Ivcher Bronstein v. Peru, Judgement of 6 February 2001, Serie C No. 74, paras.
145-164 (freedom of expression and of the media); IACtHR, “The Last Temptation of Christ” (Olmedo-Bustos et al.) v.
Chile, Judgement of 5 February 2001, Serie C No. 73, paras. 63-73 (prior censorship); and also IACtHR, Compulsory
membership in an association prescribed by law for the practice of journalism (Articles 13 and 29 ACHR), Advisory
Opinion OC-5/85, 13 November 1985, Series A No. 5.

767 Ibid., IACtHR, Reyes et al. v. Chile, para. 92.
768 Op. cit., note 39, CFR, Article 11.
769 Ibid., Article 42.
770 Ibid., Article 27.

Countering Terrorism, Protecting Human Rights

freedom of expression had been violated.771 Similarly, the Court held that it was unreasonable
to require a journalist to prove the truth of rumours or stories relating to police brutality that
he reported. This was particularly so because the articles urged setting up a body to investi-
gate complaints of police brutality which was in the public interest.772

In the context of freedom of expression and reporting on terrorism the protection of journal-
ists acting in good faith is a vital guarantee to ensure their freedom of expression.

Responsibilities

The right to freedom of expression imposes responsibilities upon those seeking to rely on the
right. This is in recognition of the powerful nature of the right and an acknowledgement that
there can be no freedom of expression without responsibility. The medium of expression is
an important factor in relation to the type of responsibilities. Therefore, as the audio-visual
media have a more immediate and powerful effect than print media, greater responsibilities
arise in relation to those media.

As has been seen in cases before the European Court, in the context of counter-terrorism,
where there is an identifiable threat, there is a particular onus on journalists to act according
to the ethics of good journalism. In relation to conflict-zone situations, there is a need for
journalists and others to take particular care when expressing themselves to avoid ambigu-
ous statements that could be interpreted as inciting violence or disorder.

Similarly, there is an obligation on civil servants requiring a degree of reserve on their part.
Judges are expected to show restraint in exercising their freedom of expression, particularly
where their authority and impartiality may be called into question. Special conditions are
also considered to attach to military life. Human rights standards recognize that restrictions
can be imposed on the police, the armed forces and civil servants.773 The Court found that a
ban on political activities by the police (in relation to freedom of expression) was justifiable
on the basis that a politically neutral police force is in the public interest.774 Similarly, the

771 “The applicant was convicted because he had used certain expressions (‘basest opportunism’, ‘immoral’ and ‘undig-
nified’) apropos of Mr. Kreisky, who was Federal Chancellor at the time, in two articles published in the Viennese
magazine Profil on 14 and 21 October 1975 […] The articles dealt with political issues of public interest in Austria
which had given rise to many heated discussions concerning the attitude of Austrians in general -and the Chancel-
lor in particular- to National Socialism and to the participation of former Nazis in the governance of the country.
The content and tone of the articles were on the whole fairly balanced but the use of the aforementioned expressions
in particular appeared likely to harm Mr. Kreisky’s reputation”, ECtHR, Lingens v. Austria, Application no. 9815/82,
8 July 1986, para. 43.

772 Op. cit., note 719, ECtHR, Thorgeir Thorgeirson v. Iceland, paras. 65-67.
773 These rights are explicit in Article 11(2) ECHR and Article 22 ICCPR.
774 “The Government contended that for decades preceding Hungary’s return to democracy in 1989 to 1990, the police

had been a self-avowed tool of the ruling party and had taken an active part in the implementation of the party poli-
cies. Career members of the police were expected to be politically committed to the ruling party. Given Hungary’s
peaceful and gradual transformation towards pluralism without a general purge in the public administration, it was
necessary to depoliticise, inter alia, the police and restrict the political activities of its members so that the public
should no longer regard the police as a supporter of the totalitarian regime but rather as a guardian of democratic
institutions. Neither the applicant nor the Commission expressed an opinion on this point […] Bearing in mind the
role of the police in society, the Court has recognised that it is a legitimate aim in any democratic society to have a
politically neutral police force […] In view of the particular history of some Contracting States, the national authori-
ties of these States may, so as to ensure the consolidation and maintenance of democracy, consider it necessary to
have constitutional safeguards to achieve this aim by restricting the freedom of police officers to engage in political
activities and, in particular, political debate”, ECtHR, Rekvényi v. Hungary, Application no. 25390/94, 20 May 1999,
paras. 44-46.

234 Countering Terrorism, Protecting Human Rights

Court held that it was legitimate to interfere with the freedom of expression rights of civil 235
servants who wish to engage in political activity.775

Not all those involved in the administration of the state will be subject to restrictions on free-
dom of expression under these circumstances. Schoolteachers, for example, may technically
be part of the administration of the state; however, they are still considered to have freedom
of expression.776

Restrictions on freedom of expression

Freedom of expression does not just protect expression itself but the conditions necessary for
it. The ability of journalists to protect their sources, for example, is one of the basic condi-
tions for press freedom. Other conditions for effective journalism include holding meetings,
obtaining information and respecting confidentiality. Therefore, counter-terrorism legisla-
tion that limits access to proscribed organizations will inevitably raise issues in relation to
freedom of expression.

States have a positive obligation to protect journalists and to promote the conditions neces-
sary for freedom of expression. Even minor restrictions on freedom of expression can have a
chilling effect, thus undermining the right. Any restriction should be justified on the basis of
legality, necessity, proportionality and non-discrimination. Below are listed some examples
of restrictions on freedom of expression that have been considered by the European Court
and other tribunals. This is not a finite list.

Prior restraint versus subsequent liability

There are two main kinds of restriction on freedom of expression that states may use in the
context of terrorism. These are prior censorship of public expressions and subsequent liabil-
ity. Prior restraints are of particular relevance in cases where it is known that a particular
statement is to be broadcast or distributed or where a person who is known to espouse par-
ticular ideas is to be interviewed in the press and a state wishes to take preventive action or
where the publication of statements at a certain time may put lives in danger by compromis-
ing a counter-terrorism operation.

Prior restraint, where publication is prevented from going ahead, may be a justified restric-
tion on freedom of expression, but it calls for the most careful scrutiny on the part of a court,
particularly where it concerns news. This is because news is such a perishable commodity.

775 ECtHR, Ahmed and Others v. UK, Case no. 65/1997/849/1056, 2 September 1998, paras. 62-64.
776 “[…] Since teachers are figures of authority to their pupils, their special duties and responsibilities to a certain extent

also apply to their activities outside school. However, there is no evidence that Mrs Vogt herself, even outside her
work at school, actually made anti-constitutional statements or personally adopted an anti-constitutional stance.
The only criticisms retained against her concerned her active membership of the DKP [German Communist Party,
a lawful organization], the posts she had held in that party and her candidature in the elections for the Parliament
of the Land. Mrs Vogt consistently maintained her personal conviction that these activities were compatible with
upholding the principles of the German constitutional order. The disciplinary courts recognised that her conviction
was genuine and sincere, while considering it to be of no legal significance […] and indeed not even the prolonged
investigations lasting several years were apparently capable of yielding any instance where Mrs Vogt had actually
made specific pronouncements belying her emphatic assertion that she upheld the values of the German constitu-
tional order”, ECtHR, Vogt v. Germany, Case no. 7/1994/454/535, 2 September 1995, para. 60.

Countering Terrorism, Protecting Human Rights