(39) In March 2021, Botswana also seized computers and phones from arrested reporters and media workers with the Moeladilotlhoko News Boiler, a private Facebook-based news outlet and demanded their passcodes, answered calls on their behalf and read messages on their devices. Two of the phones were kept as evidence post the withdrawal of the charges. (40) What is, therefore, clear from the above examples in the region, is that surveillance has adverse effects or adverse effects on free expression and media freedom. INTERNATIONAL LAW POSITION ON SURVEILLANCE While surveillance seems to have been normalised, in its unlawful and disproportionate state, it should be noted that there are various international and regional human rights instruments, as well as declarations, resolutions, principles and guidelines developed by the international human rights community that guide states with regards to monitoring, tracking and interception of citizens and their communication, and more so high risk groups like media practitioners. Of note is Principle 41 of the Declaration on Principles of Freedom of Expression and Access to Information in Africa (41) which provides as follows: 1. States shall not engage in or condone acts of indiscriminate and untargeted collection, storage, analysis or sharing of a person’s communications; 2. States shall only engage in targeted communication surveillance that is authorised by law, that conforms to international human rights law and standards, and that is premised on specific and reasonable suspicion that a serious crime has been or is being carried out or for any other legitimate aim; 3. States shall ensure that any law authorising targeted communication surveillance provides adequate safeguards for the right to privacy, including a) the prior authorisation of an independent and impartial judicial authority; b) due process safeguards; c) specific limitation on the time, manner, place and scope of the surveillance; d) notification of the decision authorising surveillance within a reasonable time of the conclusion of such surveillance; e) proactive transparency on the nature and scope of its use; and f) effective monitoring and regular review by an independent oversight mechanism. The above is also buttressed in the 2013 International Principles on the Application of Human Rights to Communications Surveillance, which highlights that any form of surveillance should be guided by the principle(s) of legality, legitimate aim, necessity, adequacy and proportionality. It is a requirement that if the State seeks access to protected information through communication surveillance for a purpose that will not place a person at risk of criminal prosecution, investigation, discrimination or infringement of human rights, the State must establish to an independent, impartial, and competent authority that: a) other available less invasive investigative techniques have been considered; b) information accessed will be confined to what is reasonably relevant and any excess information collected will be promptly destroyed or returned to the impacted individual; and c) information is accessed only by the specified authority and used for the purpose for which authorisation was given. The key takeaway is, therefore, highlighted in the General Assembly resolution 73/179 on the right to privacy in the digital age, being that surveillance of digital communications must be consistent with international human rights obligations and must be conducted on the basis of a legal framework, which must be publicly accessible, clear, precise, comprehensive and non-discriminatory. (42) RECOMMENDATIONS In light of the demonstrated cases, targeted surveillance of journalists is a violation of their fundamental rights, including the confidentiality of their sources. Whistleblower protection is one critical enabler for the realisation of media freedom and the promotion of transparency and accountability as whistleblowers are some of the key sources for journalists, especially in investigative journalism. In undertaking their watchdog role, media practitioners receive and store sensitive information thus unlawful violation on their data privacy would not be warranted. Similarly, targeted interceptions for purposes of determining or exposing journalistic sources should not be allowed. The following are recommendations, that should ensure that any form of unlawful surveillance is done away with while in instances wherein it is argued that possibly the surveillance is lawful that such surveillance STATE OF PRESS FREEDOM IN SOUTHERN AFRICA REPORT 2021 17 prosecution.