SPECIAL COLLECTION OF THE CASE LAW ON FREEDOM OF EXPRESSION
contacts. The joint petitions were brought by the lawyer Shachar Ben Meir and rights organizations to challenge the Israeli Government’s decision (“the Enabling Decision”) to authorize the
ISA to aid in coronavirus ���contact tracing”. The Court found that section 7(b)(6) of the Israel Security Agency Law, 5762-2002 (“ISA Law”), which extends ISA jurisdiction to “essential national
security interests of the State”, was too ambiguous to authorize such a significant expansion of the
ISA’s activity over time without primary legislation. The Court further held that the Enabling Decision was a “serious violation of the right to privacy” [para. 36] and that, due to the fundamental
importance of the freedom of the press, any contact tracing of journalists who tested positive for
the coronavirus by the ISA would require their consent. While the Court appreciated the urgency
of the public health crisis, it held that the “substantive flaws in the current mechanism” had to
be replaced with a “transparent, voluntary mechanism.” The Court, therefore, recommended that
Knesset Members implement primary legislation to continue the involvement of the ISA that is
both provisional and a temporary order. More info here.
India: In the case of Balu Gopalakrishnan v. State of Kerala and Ors (2020), the High
Court of Kerala issued an interim order directing the implementation of safeguarding measures
to protect the confidentiality of data collected on patients or persons susceptible to COVID-19. A
set of five petitions were filed in relation to a contract entered into by the Government of Kerala
with Sprinklr Inc., a USA based software company, for creating an online data platform for data
analysis of medical/ health data in relation to COVID-19. The petitions claimed that the contract
lacked any safeguard against the unauthorized exploitation of health data collected by Sprinklr,
on behalf of the State of Kerala. The Court stressed the urgency under the current circumstances
to protect the confidentiality of personal data in order to avoid a “data epidemic.” In light of
those concerns, the Court directed the State to anonymize all the sensitive personal data thus far
collected with respect to COVID-19 before transferring it to Sprinklr, or any third-party service
provider. Further, any future collection of data must be based on principles of informed consent
where every individual will be informed about the access of such data by third parties. The Court
also prohibited Sprinklr from committing any act in breach of confidentiality of the data and
directed Sprinklr to entrust all the residual COVID-19 related data back to the State government.
In this decision the Court does not analyze the right to freedom of expression when considering
the reasons for its ruling. Nonetheless, the scope of the protection of privacy in this particular case
provides protection to the right to freedom of expression against the chilling effect of surveillance
or overly broad data collection. More info here.
xi. Surveillance and tracking by private actors4
Peru: In the case of Acuña v. Minera Yanacocha SRL (2020) the Constitutional Court of
4 The following Courts have also analyzed the impact of surveillance and tracking by private actors can have on freedom
of expression and privacy: Belgium: Nederlandstalige rechtbank van eerste aanleg Brussel, 2015/57/C (2015), First Instance
Court; More info here. United States: The case of Google Inc. Cookie Placement Consumer Privacy Litigation (2015), Appellate Court, More info here.
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