Prosecuted for Protesting

What happened

In 2021, during the national strike, Colombia witnessed widespread protests across the country as citizens rallied against a proposed tax hike, healthcare reform, and government corruption (among other issues). The government responded with violence and repression, leading to numerous deaths and injuries.

We interviewed Pilar Saénz and Lina Palacios from Karisma, a civil society organisation dedicated to protecting and promoting human rights and social justice in the design and use of digital technologies. They emphasized that, alongside physical violence, the Colombian government is using intrusive technologies to surveil, repress, and prosecute protesters.

Even before the national strike, concerns had been raised about Colombia’s use of surveillance technologies to monitor and control human rights defenders (HRDs), activists, and journalists during protests. In 2020, a military monitoring system was exposed, revealing it contained information on journalists, trade unionists, and non-profit organisations.

However, during the 2021 protests, the organisation Karisma reported an escalation in surveillance efforts, including police attempts to acquire software for monitoring social media content and activity. There were also reports of wrongful content removal related to the protests, disruptions in connectivity, and the documented use of drones and surveillance cameras.

Regarding this issue, Karisma highlighted that Colombia lacks legal regulations governing the use of these technologies—such as facial recognition, profiling software, “cyber patrols,” cellphone-hacking tools, and drones at protests, making their deployment unlawful. This situation contrasts with other forms of surveillance, such as communications interception, which has a longer history of regulation in Colombia.

Under the context of the national strike, several national and international human rights organisations urged the government to immediately halt the repression of protests and take measures to ensure the effective exercise of rights both within Colombia and abroad. Among their demands was a call for integral reform of the police and security institutions. However, while some regulations have been introduced in response to these demands, they have not curtailed the use of surveillance technology. For example, Resolution 1091 of 2023 includes provisions for deploying technologies such as cameras and drones to support law enforcement, and it mandates the collection of information and the production of intelligence reports during the planning stages of public demonstrations.

According to Karisma, defense organisations have also raised concerns about the use of surveillance evidence, particularly SOCMINT, during the pre-trial phase, which has contributed to numerous arbitrary detentions.

Recently, the Superior Court of Bogotá upheld the conviction of four activists on charges related the national strike, including terrorism, including terrorism. WhatsApp messages and social media content were key pieces of evidence in the case. The prosecution relied heavily on intercepted communications, while also presenting evidence of the defendants’ involvement in several open WhatsApp groups. The defendants were accused of being part of six groups in which various individuals shared posts which, according to the prosecution, incited vandalism and the destruction of public infrastructure. The groups were also alleged to have been used to recruit new members for criminal activities. It is important to note that the defendants were not proven to have created these groups — only that they were members who occasionally shared content.

On Facebook, the authorities monitored the defendants’ profiles and observed their participation in specific information groups. They examined whether the defendants had shared videos or liked posts that allegedly incited violence, including content related to protest activities. The defence argued that this evidence was misleading, contending that the communications in question did not conclusively prove that the defendants were instigators or directly involved in the violent actions during the protests.

What is the wider significance

The lack of transparency hampers our ability to determine whether, and how, information gathered through surveillance technologies is used in trials, leading to breaches of the principle of equality of arms and the right to adversarial proceedings. Defendants often lack sufficient access to the evidence used against them and are unable to contest crucial information. While some evidence suggests this information is being used, the limited details available prevent a full understanding of its scope.

This opacity is exacerbated by the unregulated introduction of unlawful evidence in criminal trials. The absence of clear regulations creates a legal gray area, making it difficult to assess how these technologies are employed before, during, and after incidents. Without proper regulations, mechanisms for holding authorities accountable for potential abuses are limited, further undermining transparency in the deployment of surveillance technologies.

Bure protests & nuclear wastes

What happened

According to information provided to us by organisation Data Rights, in August 2017, several protests erupted in Bure, a village in the Meuse region of France, near the site designated to become the country’s primary radioactive waste landfill, set to begin receiving waste in 2035. This facility is one of France’s largest industrial projects.

Protests included acts of sabotage, such as the destruction of four piezometers, damage to a fence, and alterations to trees to prevent their removal. A non-authorized demonstration led to violent confrontations with law enforcement, resulting in injuries, including a demonstrator’s foot being mutilated by a law enforcement grenade. Among those involved were two retirees in their sixties, who were later charged with group destruction and refusing to provide their DNA. The charges were based on pixelated images taken by law enforcement helicopters.

Additionally, a group of individuals broke into a hotel used by center staff and set a fire, although there were no casualties. Ten activists faced criminal charges, with seven prosecuted for ‘criminal association,’ typically associated with organised crime, although no serious charges were upheld by the judges at any level.

An analysis by journalists from Reporterre and Médiapart, concluded in September 2019, revealed that 29 individuals and locations had their phone lines tapped, a thousand conversations were documented, over 85,000 conversations and texts were intercepted, amounting to more than 16 years of audio recordings, and the legal team’s phone line was monitored for four months.

In 2019, before the investigation concluded, law enforcement charged a lawyer, Mr Ambroselli, who had been providing legal support to activists targeted by the inquiry and had also represented claimants in civil proceedings against the company managing the Bure landfill. The charges were based on photos showing him at the front of an unauthorized demonstration, pushing a wheelchair with a young woman and a baby. After speaking briefly with the police, Mr. Ambroselli rejoined the protest, where demonstrators began throwing stones at law enforcement. Investigators claimed this was part of a “baby-bloc” tactic to distract the police, which Mr. Ambroselli denied, citing the safety risks it would pose. Blurry photos later presented in court, allegedly showing him in black, were used as evidence, with zoomed-in pictures purportedly highlighting his use of "city shoes with worn soles”. To the investigating judge, these pictures were considered serious corroborative evidence.

It is estimated that law enforcement spent around one million euros surveilling the Bure protests.

Wider significance

This has become a landmark case illustrating how law enforcement has used incidents of violence involving a few individuals to justify broad blanket and indiscriminate surveillance of the wider civil rights movement. The information outlined above provides a detailed view of the apparatus deployed to surveil the most targeted activists and the extent to which surveillance evidence was used in criminal proceedings against them often in ways that resulted in misleading inferences regarding criminal intent being drawn.

The level of intrusion into the lives of people ultimately found guilty of only minor offences is deeply worrying. The significance of this case also lies in the vast resources the French state committed to surveilling activists and HRDs.

COP 21 home arrest

What happened

In the aftermath of the November 2015 terrorist attacks in Paris, France hosted the 21st Conference of the Parties (COP) to the UN Climate Change Convention. According to information provided to us by organisation Data Rights, in an effort to prevent unexpected protests during this high-profile event, authorities imposed house arrests on certain individuals for the duration of the COP, including two brothers known for their environmental activism. The brothers challenged the house arrest orders, appealing first to the local administrative tribunal and then escalating their case to France’s highest administrative court, the Conseil d’État, and ultimately the Constitutional Council. After exhausting all national legal avenues, they took their case to the European Court of Human Rights (ECtHR), which delivered its ruling in the case of Domenjoud v France on 16 May 2024.

The European Court’s ruling sought to determine whether the administration’s reliance on intelligence reports “notes blanches,” constituted a sufficient basis for restricting individual freedoms. The Court found that, in the case of one brother, the intelligence reports provided adequate substantiation to justify his house arrest. However, for the other brother, the court ruled that the reports lacked sufficient detail. Emphasising the judges’ authority to request additional information from intelligence services, the European top human rights court noted that the administrative judges had accepted vague reports without exercising this power. As a result, the second brother’s house arrest was deemed unjustified, highlighting the necessity for judicial scrutiny of the evidence used to limit personal freedoms.

What is the wider significance

The reliance on opaque intelligence reports, particularly the often completely secret “notes blanches,” as well as the widespread use of criminal sanctions against climate activists in the context of the French State of Emergency declared following the 2015 terror attacks raise broader concerns about the erosion of due process rights. The lack of transparency surrounding the sources of these reports, coupled with the limited opportunity for individuals to challenge them, undermines fundamental legal principles such as the presumption of innocence and the right to a fair hearing. When intelligence data—often based on metadata analysis or surveillance—is accepted as sufficient evidence without thorough judicial scrutiny, it places undue burden on individuals to prove their innocence within constrained time frames, which, according to Data Rights are typically only 48 hours.

The broader concern is that extraordinary measures, such as those enacted during a state of emergency, can have long-lasting legal and personal consequences for those affected, especially activists and dissidents.

What happened

A significant case in India is the Bhima Koregaon case, which revolves around the arrest of 16 activists who participated in the commemoration of a historic Dalit military victory in 2018. Following the event, riots erupted, instigated by Hindu nationalists in response to speeches delivered during the commemoration, leading to the activists being charged with terrorism offenses.

Among those arrested was Rona Wilson, whose case drew significant attention due to the evidence used against him. A forensic investigation facilitated by the American Bar Association (ABA), conducted by a computer forensic consultancy, Arsenal Consulting, revealed that Wilson, along with other activists, had been under surveillance for nearly two years prior to the commemoration. The investigation found that malware had been used to infiltrate Wilson’s laptop, planting fabricated evidence such as emails discussing an alleged assassination plot against Prime Minister Narendra Modi.

Despite these revelations, the activists have remained in pre-trial detention for several years, and the trials have not yet taken place. The Bombay High Court’s decision on 15 October 2019, Vernon vs. The State of Maharashtra and ANR, Supreme Court of India, to refuse bail, based on law enforcement’s surveillance evidence, underscored the court’s reliance on this contested material. However, the Supreme Court later overturned this decision, emphasizing the necessity of scrutinizing the authenticity of evidence, particularly in cases involving serious allegations of terrorism.

What is the wider significance

The manipulation of digital evidence, such as photos and financial documents, not only casts serious doubt on the legitimacy of the charges in this case but also underscores the growing misuse of surveillance and hacking in criminal proceedings. The Bhima Koregaon case highlights significant concerns regarding the handling of digital evidence and the judiciary’s increasing reliance on it. As authorities increasingly use surveillance-based evidence to support their claims, the methods of gathering and verifying this information must be rigorously scrutinized. When such evidence is accepted without thorough examination, it risks undermining due process and jeopardizing fundamental principles of the right to fair trial, particularly the presumption of innocence.

To mitigate these risks, clear and transparent protocols for the collection, processing, and presentation of digital evidence prior to and throughout court proceedings are essential. The denial of bail based on potentially unreliable evidence can have severe consequences, especially in cases where defendants remain in pre-trial detention for extended periods. This practice threatens to unduly influence case outcomes before a fair trial can take place, emphasizing the need for stronger safeguards to ensure justice is properly served.

The Gluhkin Case

What happened

In 2019, an individual had travelled on the Moscow metro with a cardboard cut-out and banner to protest criminal proceedings that had been brought against another activist. They were arrested shortly after and charged with failing to notify the authorities of a planned solo demonstration. The protest first came to the attention of the police through the use of Social Media Monitoring (SOCMINT), as well as alleging that Facial Recognition Technology (FRT) was used during SOCMINT, as well as used on surveillance footage. At the time of the arrest, many of the cameras in the Moscow metro had been equipped with live FRT (since 2020 all its cameras operate with this technology). Screenshots of social media data and video surveillance were used as evidence by the court of first instance, which convicted and fined him (this conviction was upheld on appeal).

This case was brought in front of the European Court of Human Rights (ECtHR) on the grounds of a violation of human rights, in particular, the fundamental rights to privacy and freedom of expression as well as the right to a fair trial.

The judgment in this case records how the applicant argued that the surveillance measures through which they were identified had been unlawful, because the law that authorised police to deploy them did not apply to what he was arrested for.

Critically, in this case, the Russian authorities did not confirm or deny whether FRT had been used, and the ECtHR had to concede that there was no laws stating the need to record this use. Due to this lack of transparency, it meant that that court had to undertake fact-finding, which is usually outside of its remit.

In spite of this, the European Court found that the surveillance had interfered with the applicant’s right to privacy and freedom of expression. In relation to the right to privacy, it held that the technology used - FRT and SOCMINT - was particularly intrusive and its use did not correspond to a “pressing social need” and therefore it could not be regarded as “necessary in a democratic society”. While there was a legal basis for using FRT, the domestic legal framework lacked detailed rules governing the scope and application of FRT, as well as the absence of strong safeguards against the risk of abuse and arbitrariness.

The applicant was awarded compensation, but we believe that this judgment will have a bigger impact on all 46 Member States of the Council of Europe. We expect those countries to review their surveillance laws and practices in light of this judgment and bring them to line with the Court’s jurisprudence.

Why is the wider significance
This case highlighted that transparency is essential in light of these new technologies. Without transparency, assessing the lawfulness of prosecution evidence itself becomes more difficult or impossible. This is significant because the use of unlawful evidence may render proceedings unfair under the right to a fair trial.

Trial monitoring of cases against activists in Russia

TrialWatch, a programme within the Clooney Foundation for Justice that monitors the fairness of criminal proceedings in countries around the world and defends the rights of individuals who are unfairly imprisoned, has monitored a number of criminal proceedings against activists protestings against the government in Russia. In one such case, a coordinator of the organisation Public Network Movement Open Russia (NM Open Russia)- founded to achieve positive change through peaceful democratic processes - was arrested in 2019 after having participated in meetings and carried a placard that said #FEDUP at an anti-government protest. The organisation was designated as undesirable under the Law on Undesirable Organisations, and she was charged with intentional participation in an undesirable organisation.

Prior to their trial, law enforcement installed secret recording devices in her home, including in her bedroom. The devices gathered both recordings and footage of her at all times between August 2018 and January 2019.

According to TrialWatch, the primary evidence brought against the individual in court “obtained from the testimony of witnesses who were present at events in public places and through publicly available information, such as pictures the individual on Facebook”.

The prosecution also played numerous clips of the recordings made in their home during the trial. Most of the recordings were “inaudible” and did not contain information relevant to their criminal charges. These recordings were used to impute guilt, so that any conversation concerning NM Open Russia became in effect criminalised.

These invasions of privacy were also used prior to their trial: they were placed on house arrest. Their house arrest was justified on the basis of existing evidence that was made up of extensive surveillance data (including social media data).

What is the wider signficance

In order to safeguard the fairness of criminal proceedings, the starting point must be that anyone charged with a criminal offence shall be presumed innocent until proved guilty. In this case, the guilt of the defendant was the starting point. This reversal of the burden of proof and the presumption of innocence was driven by largescale and highly intrusive surveillance measures. The need to find incriminating information or evidence that could be used to draw inferences regarding criminal intent itself also drove further large-scale surveillance measures.

What Happened

During climate change protests in Serbia in 2021, unidentified plain clothes officers were seen filming protesters with unknown large hand-held devices.

These devices were later confirmed to have been produced by Chinese company Huawei and supplied to Serbia through a state [‘Safe City’ security-cooperation agreement between Serbia and China.

Before the protests started, the government had also deployed thousands of surveillance cameras across the country, and had sought to pass legislation to introduce mass Facial Recognition Technology (FRT) for law enforcement purposes. The government was unable to pass the legislation due to political opposition, including on human rights grounds by civil society organisations.

In spite of this, the cameras were still equipped with FRT, and the government’s public position was that the cameras had ‘not been activated’.

In the aftermath of the protests, hundreds of individuals who had attended the demonstrations were arrested and charged with misdemeanour traffic offences - essentially for jaywalking - which attracted fines.

The government denied that FRT had been used to identify protesters and the Serbian Data Protection Authority (DPA) found that the arrested individuals “were recognised based on the direct observation of police officers” rather than through FRT.

The DPA noted in its findings that Serbian law required that police video surveillance in public places involve informing the public regarding the manner of recording and the manner of communicating about that recording.

We interviewed Luka Dordevic, a Serbian lawyer whose firm represented around 300-400 of the individuals charged and fined with traffic offences. He said that he thought “it was very likely that FRT” had been used by authorities. He explained that the evidence pointed to the existence of databases of protesters together with a sophisticated video surveillance and identification operation.

Firstly, he noted that unidentified police officers stopped individuals during the demonstrations and told them that they knew who they were, but individuals were for the most part not being formally identified or arrested at the site of demonstrations themselves.

He also explained that many individuals who had attended the demonstrations in Belgrade were arrested shortly after in large numbers by local police in other parts of the country, which made the claims of direct observation less credible. In some cases, protesters were held in police stations following their arrest for hours at a time before they were charged. Moreover, none of the police officers present at the demonstrations were traffic police, and only traffic police can issue charges for traffic violations.

In light of this information, it is unclear how the Serbian police could have been gathering the evidence in accordance with the law. It appears that the mass issuing of fines was happening punitively, particularly as the Public Assembly Act (which regulates the holding of demonstrations in Serbia) does not create offences relating to participation in public gatherings.

As such, by issuing mass misdemeanour traffic charges the government was seeking to circumvent this.

Luka also explained in our interview that there were several protesters who were charged with the more serious offence of organising unlawful protests, which attracts a much more significant fine. He added that these charges resulted from law enforcement’s use of social media monitoring on protesters and that many of the charges were issued for no more than the individual having shared a post on social media encouraging others to join demonstrations. Luka explained that he was able to secure acquittals in these cases as the threshold for the offence of unlawful protest had not been met (i.e. sharing of social media posts was not enough).

What is the wider significance

The secretive and potentially unlawful use of FRT, as well as social media monitoring has a chilling effect on the right to protest. It also underlines the growing use of unlawful and unregulated surveillance data as evidence in criminal proceedings against protesters, activists, and human rights defenders. The result is that the defence rights of people involved in peaceful protest are being undermined.

In particular, the lack of transparency about surveillance technologies, including whether and how they are being used, makes the evidence that they generate difficult or impossible to challenge. This is why we are calling for safeguards that address the growing use of information gathered contrary to the human right to privacy as evidence in criminal proceedings.

What happened?

In Thailand, 2020-2021 saw significant pro-democracy protests that demanded political reform including reform of the country’s monarchy. The protests were met with significant repression that involved the arrest and imprisonment of large numbers of activists and protesters. As of April 2022, at least 1,787 people were prosecuted for participating in the protests. Many of these cases relate to alleged infringements of Thailand’s lese majeste law (which criminalises ‘defamatory’ speech against the monarchy) through sharing or posting on social media.

Through an investigation by the Internet Law Reform Dialogue (iLaw), DigitalReach, and the Citizen Lab at the Munk School of Global Affairs & Public Policy, University of Toronto it is clear that a number of activists may have been arrested and detained through information obtained by way of spyware.

In one case, an activist was infected with Pegasus spyware on four separate occasions. The first three infections took place in June 2021. According to the investigation, this indicated that “the attackers might have been looking for information about a planned protest to commemorate the 89th anniversary of the 1932 Siamese Revolution”. In September 2021, the activist in question was arrested and detained. She was informed that this was on the basis that she was allegedly the administrator of a Facebook page used to orchestrate protests. Given the extent of access to an electronic device that a Pegasus infection facilitates as well as the fact that it is unclear where else the authorities obtained the information, it is possible that the use of Spyware triggered the activist’s arrest.

During her detention, the police sought to confiscate her mobile phone without a warrant. They attempted to justify their phone seizure on the basis that they required information in relation to the identity of another administrator of a Facebook page. The activist’s lawyer was able to prevent the warrantless seizure of her phone and she was granted bail on the day of her arrest. However, a day later her phone was infected with Pegasus spyware. As above, the authorities have denied using Pegasus. However, there was a proximity in time between her arrest, detention, and the infection. It is therefore likewise possible that the infection was designed to achieve what the authorities had sought to do when they tried to confiscate her phone, namely, to obtain intelligence about individuals involved in a Facebook page used by activists and thereby effect further arrests.

The Thai criminal procedure rules do not permit the prosecution to admit evidence obtained via spyware into criminal proceedings. However, other intrusive and unregulated surveillance mechanisms (as opposed to outright unlawful measures) have been used to obtain information about activists that then underpinned prosecutions against them. For example, social media monitoring (SOCMINT) was widely used to generate evidence used to launch legal proceedings including through facebook posts, video clips, and other online material.

Information was not only gathered from social media by law enforcement officers, but also by non-state, pro regime civic associations and groups. Under Thai law, such non state actors can directly file lese majeste proceedings and it is documented that these groups regularly lodged claims in parts of the country far away from where defendants resided to make them more difficult to defend.

What is the wider significance?

It is documented that bail has been routinely denied for activists and protesters charged with lese majeste offences. As such, this surveillance is directly leading to individuals experiencing the deprivation of their liberty even before cases have properly begun against them and this is on top of the judicial harrassment of pro regime groups filing claims against them.

In cases where spyware played a role, there is no way for activists and protesters to even dispute any of the information gathered. This is because it is not acknowledged that spyware has been used to collect information about protests and for this reason there is no process to challenge or exclude such data.

What Happened

In the UK, the BBC reported that two protesters involved in Black Lives Matter demonstrations in 2020 and who had been prosecuted for allegedly assaulting and abusing police officers were acquitted after the court found that the prosecution had deliberately failed to disclose bodycam footage favorable to the defendant.

According to their legal representatives, the bodycam footage showed the protesters being pushed and struck by officers policing the protest rather than the pair being involved in any violence against the officers.

The BBC stated that it “had heard multiple complaints” that video footage “is not being shared with defence teams under disclosure rules, despite its increasing importance in criminal cases”.

It was also stated there were 150 reports of failings in relation to the onward uses of data gathered by bodycams.

This included failing to disclose data, switching off cameras when force was used, and the deletion of relevant information.

What is the wider significance

As we have previously argued, using intrusive and blanket surveillance technologies such as bodycams or Facial Recognition Technology (FRT) to track peaceful protesters clearly interferes with the human right to privacy.

But intrusive surveillance of protests is also increasingly leading to breaches of the due process and fair trial rights of activists and protesters. In this case, for example, the collection of copious amounts of surveillance data interfered with the duty on the part of the prosecution to provide the defence with disclosure of all relevant materials, including information that would aid the defence.

This duty is critical to the fair trial rights of activists and protesters who are increasingly being prosecuted for their roles in protests and demonstrations. It enables them to be able to properly interrogate the credibility of evidence used against them and ensures that they do not have to start from a position of proving their innocence.