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II. Obligations arising from human rights standards

9. Right to privacy

Everyone has the right to privacy, including people who use drugs.

In accordance with this right, States should:

i. Adopt legislative, administrative, and other measures to prevent arbitrary and unlawful interference with the privacy, family life, home, and correspondence of people who use drugs.

ii. Ensure the protection of the right to privacy in relation to criminal investigations for drug-related offences.

iii. Adopt legislative and other measures to prevent the disclosure of individuals’ personal health data, including drug test results and drug dependence treatment histories, without their free and informed consent.

iv. Ensure that welfare conditionalities and administrative requirements to access rights and benefits do not unlawfully, unnecessarily, or disproportionately infringe the privacy of those who use drugs.

In addition, States may:

v. Utilise the available flexibilities in the UN drug control conventions to decriminalise the possession, purchase, or cultivation of controlled substances for personal consumption.

Commentary:

The right to privacy is protected in a number of international and regional instruments.[522] For example, the International Covenant on Civil and Political Rights prohibits arbitrary and unlawful interference with a person’s privacy and requires protection of the law against such interference.[523] The right to privacy is also a key component of other rights.[524] For example, the right to health includes the obligation to ensure that health care providers respect confidentiality in health care settings and to otherwise protect the confidentiality of personal health information.[525] State measures compelling the communication or disclosure of personal health information without the individual’s consent must be strictly justified.[526]

Domestic courts in several countries have ruled that the criminalisation of drug possession and cultivation for personal use violates the right to privacy as protected by their respective constitutions.[527] Other examples of potential infringements of this right with regard to drug policy include special investigative techniques used in drug enforcement operations, the use of personal health data derived from drug testing and treatment records, welfare conditionalities, and the requirement to be placed on a government registry to receive harm reduction services or drug dependence treatment.

Investigations

Special investigative techniques that can be used in drug-related cases may give rise, under certain circumstances, to concerns about the impermissible infringement of the right to privacy. Through its case law on secret measures of surveillance, the European Court of Human Rights has developed a set of minimum statutory safeguards to avoid abuses of power and comply with human rights standards, including with respect to the right to privacy. The safeguards define the nature of the offences that may give rise to a surveillance order; categories of people liable to be subject to any such measure; the duration of any such measure; the procedure to be followed for examining, using, and storing the data obtained; the precautions to be taken when communicating the data to other parties; and the circumstances in which recordings may or must be erased or destroyed. In addition, the Court has established that the body issuing authorisations for surveillance orders should be independent[528] and that there should be a form of judicial control or control by an independent body over the issuing body’s activity.[529] Interceptions ordered by the public prosecution, without the possibility of an a priori control by a judicial officer, do not meet the required standards of independence.[530]

In its jurisprudence regarding the interception of communications, the European Court of Human Rights defines the following minimum safeguards for statutory regulation: a definition of the categories of people liable to have their telephones tapped by judicial order; the nature of the offences that may give rise to such an order; a limit on the duration of telephone tapping; a procedure for drawing up summary reports containing intercepted communications; the precautions to be taken in order to communicate the recordings intact and in their entirety for possible inspection by the judge and defence; and the circumstances in which recordings may or must be destroyed, particularly where the accused has been discharged by an investigating judge or acquitted by a court.[531]

Health data, drug testing, and drug treatment

According to the Human Rights Committee, the gathering and holding of personal information on computers, data banks, and other devices by public authorities or private individuals must be regulated by law. States must take effective measures to ensure that information about a person’s private life is not obtained by people not authorised by law to receive, process, and use it. Everyone should have the right to ascertain whether and what personal data is stored in data files and which public authorities or private individuals control or may control their files.[532]

UN human rights mechanisms have raised concerns that the disclosure of private, confidential information about a person’s health status may drive people away from seeking medical attention or drug dependence treatment, out of fear that their illicit drug use will be shared with law enforcement or other State authorities, possibly leading to arrest, imprisonment, greater police attention, or further ill-treatment by health providers, including the imposition of drug dependence ‘treatment’ without their consent.[533] In some jurisdictions, government drug treatment clinics establish registries of people seeking treatment and share this information with law enforcement and other government agencies. This violates the obligation to protect the confidentiality of personal health information[534] and may deter people from seeking treatment.[535] In addition, people from whom such data are collected should be informed – at or prior to the time of collection – of the intended purpose for which the information is being collected, the reasons why it has been requested, and whether it will be shared with government institutions.[536]

The Special Rapporteur on the right to health has found that ‘a lack of confidentiality may deter individuals from seeking advice and treatment, thereby jeopardizing their health and well-being. Thus, States are obliged to take effective measures to ensure medical confidentiality and privacy’.[537] The Committee on the Elimination of Discrimination against Women has likewise observed that ‘while lack of respect for the confidentiality of patients will affect both men and women’, it may especially ‘deter women from seeking advice and treatment’ such as ‘medical care for diseases of the genital tract, for contraception or for incomplete abortion and in cases where they have suffered sexual or physical violence’.[538] This may be especially true for poor and otherwise marginalised women who use drugs. The Supreme Court of Argentina has ruled that health care professionals’ disclosure of confidential information about drug ingestion for use by the police as evidence of drug trafficking violates the right to medical confidentiality, derived from the constitutional right to privacy.[539]

Welfare conditionality

The Committee on Economic, Social and Cultural Rights has expressed concern that conditioning welfare benefits on the results of a drug test lacks a credible evidence base and may deepen stigma against people who use drugs and drive them away from treatment.[540] Such interference with the right to privacy may be lawful in the narrow sense of being pursuant to national law and involving the consent of the person tested, but it may have an unlawful discriminatory impact on people based on their sex or health or economic status.[541] Courts in the United States have held the mandatory or random drug testing of welfare recipients, absent a reasonable suspicion of drug use, to be an unconstitutional violation of privacy protections.[542]

Right to privacy and the internet

The UN General Assembly has raised concern that ‘unlawful or arbitrary surveillance and/or interception of communications, as well as unlawful or arbitrary collection of personal data, as highly intrusive acts, violate the rights to privacy and freedom of expression and may contradict the tenets of a democratic society’. It has also noted that ‘while concerns about public security may justify the gathering and protection of certain sensitive information, States must ensure full compliance with their obligations under international human rights law’.[543] The Office of the UN High Commissioner for Human Rights has stated that inadequate national legislation and enforcement, weak procedural safeguards, and ineffective oversight have contributed to a lack of accountability for arbitrary or unlawful interference in the right to privacy. It has emphasised the need for States to ensure that their laws, policies, and practices conform with international human rights law and to ensure that effective and independent oversight mechanisms are in place.[544]

The UN General Assembly Special Session 2016 Outcome Document recommends a number of measures to support the use of the internet to address drug trafficking, money laundering, and other illicit drug-related activities.[545]

Relationship to the UN drug control conventions

There is sufficient flexibility in the drug control conventions to decriminalise possession and other activities related to the personal consumption of controlled substances, even if not for medical or scientific purposes. The 1988 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances requires only that each State Party establish criminal liability for the intentional ‘possession, purchase or cultivation of drugs for personal consumption’ that is ‘contrary to the provisions of the 1961 Convention, the 1961 Convention as amended or the 1971 Convention’ (e.g., for non-medical or non-scientific use).[546] This obligation is further subject to any ‘constitutional limitations’ of the State Party[547] and to the ‘constitutional principles and basic concepts of [the State Party’s] legal system’.[548] States therefore have the latitude to determine whether imposing criminal liability and sanctions for drug possession, purchase, or cultivation for personal consumption contravenes constitutional provisions or otherwise offends against the basic concepts of their legal system, including in relation to the right to privacy.

  • 522. ^

    Universal Declaration of Human Rights, G.A. Res. 217A (III) (1948), art. 12; International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI) (1966), art. 17; American Convention on Human Rights, O.A.S. Treaty Series No. 36 (1969), art. 11; [European] Convention for the Protection of Human Rights and Fundamental Freedoms, ETS No. 5 (1950), art. 8; Arab Charter on Human Rights (2004), art. 21.

  • 523. ^

    International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI) (1966), art. 17(1).

  • 524. ^

    See, e.g., Committee on Economic, Social and Cultural Rights, General Comment No. 14: The Right to Health, UN Doc. E/C.12/2000/4 (2000), para. 3.

  • 525. ^

    Committee on Economic, Social and Cultural Rights, General Comment No. 14: The Right to Health, UN Doc. E/C.12/2000/4 (2000), para. 12(b, c); European Court of Human Rights, Z v. Finland, Application No. 22009/93, 25 February 1997, para. 96; see also Smith v. Jones [1999] 1 SCR 455 (Canada), para. 74 et seq.

  • 526. ^

    European Court of Human Rights, Z v. Finland, Application No. 22009/93, 25 February 1997, para. 96; see also Smith v. Jones [1999] 1 SCR 455 (Canada), para. 74 et seq.

  • 527. ^

    Arriola, Sebastián y otros s/ causa n° 9080 (A. 891. XLIV), Corte Suprema de Justicia de la Nación (Argentina), 25 August 2009; Sentencia C-574/2011, Corte Constitucional (Colombia), 22 July 2011; Amparo en Revisión 237/2014, Suprema Corte de Justicia de la Nación (Mexico), 4 November 2015; Amparo en Revisión 1115/2017, Suprema Corte de Justicia de la Nación (Mexico), 11 April 2015; Amparo en Revisión 623/2017, Suprema Corte de Justicia de la Nación (Mexico), 13 June 2018); Amparo en Revisión 547/2018, Suprema Corte de Justicia de la Nación (Mexico), 31 October 2018; Amparo en Revisión 548/2018, Suprema Corte de Justicia de la Nación (Mexico), 31 October 2018; Minister of Justice and Constitutional Development and Others v. Prince; National Director of Public Prosecutions and Others v. Rubin; National Director of Public Prosecutions and Others v. Acton and Others [2018] ZACC 30 (South Africa).

  • 528. ^

    European Court of Human Rights, Malone v. United Kingdom, Application No. 8691/79, 2 August 1984, para. 67.

  • 529. ^

    European Court of Human Rights, Huvig and Huvig-Sylvestre v. France, Application No. 11105/84, 24 April 1990, para. 33; European Court of Human Rights, Kruslin v. France, Application No. 11801/85, 24 April 1990, para. 34; European Court of Human Rights, Kopp v. Switzerland, Application No. 23224/94, 25 March 1998, para. 72; European Court of Human Rights, Amann v. Switzerland, Application No. 27798/95, 16 February 2000, para. 60; European Court of Human Rights, Iordachi and Others v. Moldova, Application No. 25198/02, 10 February 2009, para. 40.

  • 530. ^

    European Court of Human Rights, Dumitru Popescu v. Romania (2), Application No. 27798/95, 26 April 2007, paras. 70–73.

  • 531. ^

    European Court of Human Rights, Huvig and Huvig-Sylvestre v. France, Application No. 11105/84, 24 April 1990, para. 34; European Court of Human Rights, Kruslin v. France, Application No. 11801/85, 24 April 1990, para. 35; European Court of Human Rights, Valenzuela Contreras v. Spain, Application No. 27671/95, 10 July 1998, para. 46.

  • 532. ^

    Human Rights Committee, General Comment No. 16: Article 17 (Right to Privacy) (1988), para. 10.

  • 533. ^

    Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, Anand Grover, UN Doc. A/65/255 (2010), para. 20; Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan Méndez, UN Doc. A/HRC/22/53 (2013), para. 72.

  • 534. ^

    Committee on Economic, Social and Cultural Rights, General Comment No. 14: The Right to Health, UN Doc. E/C.12/2000/4 (2000), para. 12.

  • 535. ^

    Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, Anand Grover, UN Doc. A/65/255 (2010), para. 20.

  • 536. ^

    Organization for Economic Cooperation and Development, Guidelines Governing the Protection of Privacy and Transborder Flows of Personal Data (2013), paras. 9, 10.

  • 537. ^

    Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, UN Doc. E/CN.4/2004/49 (2004), para. 40.

  • 538. ^

    Committee on the Elimination of Discrimination against Women, General Recommendation No. 24: Women and Health, UN Doc. A/54/38/Rev.1, chap. I (1999), para. 12(d).

  • 539. ^

    Baldivieso, César Alejandro s/ causa n° 4733 (B. 463, L. XL), Corte Suprema de Justicia de la Nación (Argentina), 20 April 2010.

  • 540. ^

    Committee on Economic, Social and Cultural Rights, Concluding Observations: Australia, UN Doc. C.12/AUS/CO/5 (2017), para. 43.

  • 541. ^

    Communication from Philip Alston, Special Rapporteur on Extreme Poverty and Human Rights, Reference No. OL AUS 5/2017 (2017).

  • 542. ^

    Lebron v. Secretary of Florida Department of Children & Families, 710 F.3d 1202 (11th Cir. 2014) (United States); Marchwinski v. Howard, 113 F. Supp. 2d 1134, 1135 (E.D. Mich. 2000), rev’d, 309 F.3d 330 (6th Cir. 2002), reh’g en banc granted, judgement vacated, 319 F.3d 258 (6th Cir. 2003), aff’d by an equally divided court, 60 F. App’x 601 (6th Cir. 2003) (en banc) (United States).

  • 543. ^

    UN General Assembly, Resolution 68/167: The Right to Privacy in the Digital Age, UN Doc. A/RES/68/167 (2013).

  • 544. ^

    The Right to Privacy in the Digital Age: Report of the Office of the United Nations High Commissioner for Human Rights, UN Doc. A/HRC/27/37 (2014), paras. 47, 50, 51.

  • 545. ^

    UN General Assembly, Resolution S-30/1: Our Joint Commitment to Effectively Addressing and Countering the World Drug Problem, UN Doc. A/RES/S-30/1 (2016), paras. 5(p, q, r, s, t).

  • 546. ^

    Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1582 UNTS 95 (1988), art. 3(2).

  • 547. ^

    Single Convention on Narcotic Drugs (as amended by the 1972 Protocol), 520 UNTS 7515 (1961), art. 36; Convention on Psychotropic Substances, 1019 UNTS 14956 (1971), art. 22.

  • 548. ^

    Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1582 UNTS 95 (1988), art. 3(2).

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