September 16, 2008European Court of Human Rights Finalised Surveillance Complainant
The facts of the case
RSI (then British Irish Rights Watch), Liberty, and the Irish Council for Civil Liberties brought a case to the European Court of Human Rights (“the Court”) pertaining to their Article 8 right to respect for correspondence. The Interception of Communications Act 1985 had outlawed the intentional interception of communications by post or by other public telecommunications systems. Some exceptions were delineated, such as interception in the interest of national security, and the Secretary of State was tasked to ensure safeguards were in place to prevent abuses of power. Additionally, the Act provided for the creation of the Interception of Communications Tribunal (“ICT”) and the appointment of a Commissioner with reporting and reviewing powers to investigate complaints from anyone who believed their communications had been intercepted.
The Applicants alleged that between 1990 and 1997, their communications—including legally privileged and confidential information—had been intercepted by a facility operated by the Ministry of Defence (“MOD”). Despite having lodged complaints with the ICT, the Director of Public Prosecution, and the Investigatory Powers Tribunal (“IPT”) challenging the legality of this continued interception, domestic authorities did not find any contravention of the Act.
RSI’s arguments in the case
RSI argued that the procedure of communication interception allowed for the interception of communications falling within the wide category set out in the warrant. The sole protection to those affected was the Secretary of State’s ability to make such ‘arrangements as he considered necessary’ to ensure their communications would not be seen by any person not covered by the Regulations.
RSI argued that in order to be compatible with Article 8 of the Convention, any interception must be in accordance with the law: it must have a basis in domestic law that is adequately accessible and formulated with sufficient clarity to be foreseeable. The arrangements made by the Secretary of State did not meet this standard. They were not made known to the public, nor were any procedures through which a member of the public could find out what they were.
The judgment in the case
The Court unanimously held that the Applicants’ right to respect for correspondence in Article 8 had been violated, and recognised that the discretion granted to the UK Government was extremely broad.
In recognising the Article 8 violation, the Court based its judgment on the inadequacy of the surveillance system created by the Act more broadly and reasserted the Court’s position on surveillance legislation. Not only did the Act grant near unfettered discretion to the government to collect external communications, but it also allowed for wide discretion in deciding what communications could be listened to and read.
The Court found that the Act did not indicate with sufficient clarity the scope and manner of exercising the discretionary power afforded to the government. This failure meant that adequate protection against the abuse of power was not provided, and therefore the Act was not in accordance with the law. In particular, the Court found that the lack of publicly available procedures, regarding the selection, sharing, storing, and destruction of intercepted data, did not meet the standard required by its case law.
What does this mean for our work?
This landmark case forms a clear statement from the Court that, on the whole, indiscriminate surveillance is incompatible with the right to privacy under the ECHR. It reinforces RSI’s work to promote greater accountability in relation to national security-related harms, as well as better access to justice for those who suffer such harms.
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