dure to enable them to obtain access to their personal files held by public authorities within a reasonable time.383
256. T he Council of Europe Committee of Ministers has recognized that data processing
and broad surveillance can undermine the confidentiality rights associated with
certain professions, such as the protection of journalists’ sources, and can even
threaten the safety of the persons concerned.384 Principle 22 of the UN Basic Principles on the Role of Lawyers provides that “[g]overnments shall recognize and
respect that all communications and consultations between lawyers and their clients within their professional relationship are confidential.”385 Moreover, OSCE
participating States have committed to take “[a]ll reasonable and necessary measures […] to ensure the respect of the confidentiality of the lawyer-client relationship.”386 They have also committed to ensure that “journalists, including those
representing media from other participating States, are free to seek access to and
maintain contacts with public and private sources of information and that their
need for professional confidentiality is respected.”387 Given the increasing importance of the Internet as a means of mass communication, the need to extend the
protection of journalists’ sources to other actors has emerged.388
257. In addition to recognizing the particular professional needs of human rights defend-
ers who are journalists or lawyers, participating States should also acknowledge
the specific needs of other human rights defenders as regards the protection of
their privacy rights, including the confidentiality of their communications, in order
to protect their sources or the people whose rights they defend. This is particularly
important for those whose sources, including witnesses and whistleblowers, face
383 See, for example, Haralambie v. Romania, Application no. 21737/03, Information Note on the Court’s
case-law No. 123, October 2009.
384 See the Council of Europe Committee of Ministers, “Declaration on digital tracking and other surveillance technologies”, para. 2. Similarly, the Special Rapporteur on the promotion and protection of the right to
freedom of opinion and expression noted in relation to the privacy, security and anonymity of communications
of journalists that “[a]n environment where surveillance is widespread, and unlimited by due process or judicial
oversight, cannot sustain the presumption of protection of sources. Even a narrow, non-transparent, undocumented, executive use of surveillance may have a chilling effect without careful and public documentation of its
use, and known checks and balances to prevent its misuse”; see A/HRC/23/40, para. 52. Moreover, the European Court of Human Rights has stated “[h]aving regard to the importance of the protection of journalistic sources
for press freedom in a democratic society and the potentially chilling effect an order of source disclosure has on
the exercise of that freedom, such a measure cannot be compatible with Article 10 (art. 10) of the Convention
unless it is justified by an overriding requirement in the public interest”; see Goodwin v. the United Kingdom,
Application no. 17488/90, 27 March 1996, para. 39. As regards lawyers, the UN Human Rights Committee, for
example, recommended the Netherlands to ensure the exclusion of communications protected by the privilege
of confidentiality from tapping. The Committee was concerned that recordings of telephone conversations involving professionals who have a confidentiality duty, especially lawyers, were not safeguarded in a manner
that preserved lawyer-client confidentiality. See CCPR/C/NLD/CO/4, 25 August 2009, para. 14.
385 See “Basic Principles on the Role of Lawyers”, Adopted by the Eighth United Nations Congress on the
Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990.
386 See Brussels 2006, “Brussels Declaration on Criminal Justice Systems”.
387
See Vienna 1989, “Co-operation in Humanitarian and Other Fields”, para. 40.
388 See “Shaping policies to advance media freedom”, OSCE Representative on Freedom of the Media Recommendations from the Internet 2013 Conference, Recommendation 3, https://www.osce.org/fom/100112.
Guidelines on the Protection of Human Rights Defenders
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