Human Rights in the Digital Era

Right of Notification After Surveillance

Franziska Boehm discusses the possibility of a recognized right to notification after online surveillance in a paper co-authored with Professor Paul de Hert (Vrije Universiteit Brussel)

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“The Rights of Notification after Surveillance is Over: Ready for Recognition?” – Professor Paul de Hert  (VUB) & Franziska Boehm (Université du Luxembourg

The notification of individuals of surveillance measures is a crucial issue currently discussed in several Member States. Provisions so far enacted in this area reflect a certain ambiguity in the regulation of this matter. As a consequence, the right to be informed of the fact that online malware installation have been set up on the computer, that the telephone has been tapped or that a person has been subject to (secret) visual and/or video surveillance measures are not harmonised in the EU. While some Member States follow a quite transparent approach, others are more reluctant. The developments in the Member States, however, show a general tendency towards the establishment of a right to be informed. In Germany, for instance, public authorities are required to notify subjects in most of cases after the termination of surveillance activities. Belgium has recently introduced in its law on secret service powers an obligation to inform individuals after surveillance measures have taken place. In contrast, the Netherlands plan to abandon their information duty, due to the impracticability reasons. Discussions in the Member States are reflected at European level as well. Recent case-law of the European Court of Human Rights in respect to the purpose and necessity of secret surveillance measures, links the right of notification to the effectiveness of remedies before the courts and consequently to the existence of effective safeguards against the abuse of monitoring powers.[1] Nonetheless, the Court’s position is not perfectly clear. Although it seems to be in favour of a notification duty, it hesitates to establish a general obligation. The paper discusses the relevant case-law at the national and EU level. It refers to the ongoing discussions in Belgium and the Netherlands and analyses the jurisprudence of the European Court of Human Rights in this area. Questions such as the acceptance of a right of notification after surveillance is terminated and the possible recognition of this right are being tackled.

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