Wave Goodbye To Solitude: Privacy in Public Under Threat in Colombia

This piece was written by PI Advocacy Officer Matthew Rice.

Our submission is available in Spanish here and in English here.

We spend a large majority of our time inhabiting public places as we go about our daily lives, and we tend to assume that our conversations with friends or family in cafes, demonstrations, parks are private. Should the sole fact that you are in a public place negate your right to privacy and make where you go, who you meet, and what you say fair game for the police to monitor? We may live in an era where we share our views openly on social media, but we do not expect these conversations to be collected and analysed by our governments.

Colombia’s police code (Law 1801 of 2016), which came into force in early 2017, fundamentally undermines the right to privacy in Colombia. Article 32 of the Code limits the right to privacy to ‘an area that is exclusive and considered private’. The interpretation of this could be incredibly narrow and shifts the right to privacy from one that can protect your personal identity, to a right that is extremely narrow.

Regrettably, the attempt to remove the right to privacy in public places is something we are increasingly seeing in countries across the world. In October 2016, Privacy International alerted the United Nations Human Rights Committee to this pattern of stripping back the fundamental right. In light of continuing concerns, Privacy International has submitted an intervention in the Colombian Supreme Court case brought by Colombian organisation Dejusticia, which challenges this and other provisions in the Code. which undermined fundamental constitutional rights of Colombians.

Additional concerns raised by Privacy International include Article 139, which defines public space in very broad terms, including notably to include “the electromagnetic spectrum”- which carries radio frequencies, including signals from electronic devices. Notably the inclusion of the electromagnetic spectrum in the definition of public space was featured as a point of concern in the UN Human Rights Committee observations, November 2016.

The recognition of the right to privacy in a public place ensures vital safeguards and protections.

Consider a video surveillance system, which can record a person walking through a public place in Bogota, tracking them as they go from one area of the city to another — from work to a medical appointment. To invade a person’s privacy, one would expect police who access the footage and analyse it to obtain a court order, demonstrate their reasons for requiring that specific footage, and for there to be independent oversight to prevent abuse and misuse. However, if we remove the right to privacy from this scenario then what protections will remain? In the rights-limited scenario created by the Police Code, what stops the police from retrieving that footage, or someone else’s footage, or all the footage across the city of Bogota for whole days, weeks or months, if they so wish?

The European Court of Human Rights has developed significant jurisprudence on the scope of the right to privacy under Article 8 of the European Convention on Human Rights, whose wording is similar to Article 11 of the Inter American Convention, which Colombia has ratified.

In Von Hannover v. Germany, which related to photos of the applicant taken exclusively in public places, the European Court of Human Rights ruled:

“50. The Court reiterates that the concept of private life extends to aspects relating to personal identity, such as a person’s name, or a person’s picture.
Furthermore, private life, in the Court’s view, includes a person’s physical and psychological integrity; the guarantee afforded by Article 8 of the Convention is primarily intended to ensure the development, without outside interference, of the personality of each individual in his relations with other human beings. There is therefore a zone of interaction of a person with others, even in the public context, which may fall within the scope of “private life”.

That same sentiment is echoed in P.G. and J.H. v. The United Kingdom. “Private life considerations may arise, however, once any systematic or permanent record comes into existence of such material from the public domain.” The issue was encapsulated by Lord Toulson of the Supreme Court of the United Kingdom in his dissenting judgement in R (Catt) v. Commissioner of Police of the Metropolis & Anor:

“One might question why it really matters, if there is no risk of the police making inappropriate disclosure of the information to others. It matters because in modern society the state has very extensive powers of keeping records on its citizens. If a citizen’s activities are lawful, they should be free from the state keeping a record of them unless, and then only for as long as, such a record really needs to be kept in the public interest.”

New technology permits the large-scale recording of individuals in public places. Techniques used include the use of facial recognition technology, body worn video, automated number plate recognition technology, and social media monitoring. When we begin to consider the idea of “public” and “private” around digital spaces, Colombia’s Article 32 definition is a move in the wrong direction. In public spaces, whether it be physical or digital, we have a right to privacy, a right which connects in turn to freedom of expression and assembly.

Thanks to Miguel Osorio and Laura Peñaranda for their support translating Privacy International’s intervention into Spanish.