(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.

Select target paragraph3