433 Esther Salamanca Aguado Respect for privacy and personal data protection... The aim of our work is not to conduct an in-depth analysis of this lawsuit or to anticipate the arguments that the ECHR is likely to put forward; it is to clarify what the minimum standards of protection are pursuant to Article 8 of the ECHR and whether these are adequate, given the new situation of mass surveillance of (national and extraterritorial) communications. We will first examine the scope of the right to privacy and personal data protection within this context, paying special attention to the cases in which the exercise of these rights can be limited. In other words, any interference with these rights must be in accordance with the law, pursue a legitimate aim and be necessary in a democratic society. Secondly, we will assess whether ECHR Member States are obliged to take measures to protect their citizens against extraterritorial surveillance conducted by third countries that is contrary to the requirements of the ECHR. 2. RIGHTS GUARANTEED BY ARTICLE 8 OF THE ECHR International human rights law not only recognises the right to privacy and family life as a fundamental human right,16 it also regards it as a human right that supports other human rights and forms the basis of any democratic society.17 Under the foregoing, each person is entitled to be protected against arbitrary or unlawful interference with his/her private and family life, his/her home and correspondence, as well as unlawful attacks on his/her honour and reputation. This right is required to be guaranteed against all such interferences and attacks whether they emanate from State authorities or from natural or legal persons. Therefore, the State is required to adopt legislative and other measures to give effect to the prohibition against such interferences and attacks.18 http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-140713#{“itemid”:“001-140713”). 16 In the Universal Declaration of Human Rights (Article 12), in the International Covenant on Civil and Political Rights (Article 17), in the Convention on the Rights of the Child (Article 16), the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (Article 14), in the American Convention on Human Rights (Article 11), in the European Convention on Human Rights and Fundamental Freedoms (Article 8) and in the EU Charter of Fundamental Rights (Article 7). 17 A/HRC/13/37, p. 6 18 Human Rights Committee, General Comment 16, paragraph 1. There are three requirements that determine the right to respect for correspondence. One, privacy of communications, i.e., individuals are able to exchange information and ideas in a space that is beyond the reach of other members of society, the private sector, and ultimately the State itself. Two, security of communications, meaning that individuals should be able to verify that their communications are received only by their intended recipients, without interference or alteration, and that the communications they receive are equally
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