5 legal facts journalists should know about digital communication

Both the right to freedom of expression as well as the right to privacy are human rights, which are outlined in the Universal Declaration of Human Rights (UDHR):

“No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.” – Article 12, UDHR

“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” – Article 19, UDHR

Nation states should respect these rights and guarantee it through incorporating it in their national constitutions. However, journalists should keep two limitations in mind: Firstly, the Universal Declaration of Human Rights is a so-called soft law, which means that people cannot directly refer to it in court. Hard law is mostly made by nation states. Secondly, an interference with human rights can be justified by law to follow a legitimate aim. This can be protection of other people’s rights, national security, public safety, prevention of a crime or protection of someone’s wellbeing. The interference has to be defined by law, proportionate to the legitimate aim and necessary in a democratic society.

As the internet is (at least for some states) still relatively new, some areas are not fully regulated yet. Also, the internet allows people to constantly develop emerging technologies, and states will always be a little bit “behind”. However, if something is not regulated, it does not automatically mean that it cannot be criminalised. Governments mostly argue that “the rules of the offline world also need be applicable to the online world.'' They can be creative in arguing that the media has committed “crimes” on the internet or while using digital technologies - for example: encryption.

That is why journalists should use new tools with a professional sense of caution and check in advance if, for example, the use of an emerging feature can be considered a crime in their country – can it, in the end, cause more harm than benefit?

Most of the states make a legal difference between targeted and mass surveillance. Targeted surveillance means that an authority already has a reason to suspect an individual and believes that surveillance of that specific person may be necessary. The authority would use it to prove its suspicion. Mass surveillance means that an authority does not have a concrete suspicion but wants to collect as much data as possible and then searches for suspicious behaviour.

Targeted and mass surveillance may be regulated differently in national laws, but both can become dangerous for journalists and their sources. Therefore, journalists should reflect both measures in their threat model and inform themselves about the legal situation in their country.

It is not legally decided on an international level, whether or not people have a right to encryption and anonymity to exercise their right to freedom of expression, or if the states are allowed to prohibit its use. In 2015, UN special rapporteur David Kaye submitted a report to the Human Rights Council and explained that both encryption and anonymity deserve strong protection. However, as states also have the right to interfere with human rights offline in certain circumstances, they may also be legally allowed to limit rights to use encryption and anonymity. Indeed, some states have already prohibited the use of certain encryption technologies or of VPNs. Consequently, journalists may not completely rely on these rights, especially if their governments do not respect the rule of law.

In the first place, it makes a difference as to who collects data; whether a company or a state. While companies mostly do this for business purposes, states do this to exercise their monopoly of power. However, the data is not stored in isolated silos and the states are regulating the companies more and more to get access to the data stored with them as well. For example, email providers or social networks may have to hand over data about their users and their communications if they are legally bound to this. Journalists have to take this into account and especially inform themselves about agreements between companies and their governments. This could be done in the stated terms of the service and national laws.