Liberty and British Irish Rights Watch v UK (Application No 1894/91)

16th September 2008

• European 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 Libertiesbrought a case to the European Court of Human RightstheCourt) pertaining to their Article 8 right to respect for correspondence. TheInterception of Communications Act1985had outlawed the intentional interception of communications by post or by other public telecommunications systems.Some exceptions were delineated, such asinterception in the interest of national security, andthe Secretary of State was tasked to ensure safeguards were in placeto preventabuses of power. Additionally, the Act provided for the creation oftheInterception of Communications TribunalICT)andthe appointment of a Commissioner with reporting and reviewing powers to investigate complaints from anyone who believed their communications had been intercepted.

TheApplicantsalleged that between 1990 and 1997,their communicationsu2014including legally privileged and confidential informationu2014had been intercepted by a facility operated by the Ministry of Defence MOD). Despite having lodged complaints with the ICT, theDirector of Public Prosecution,and the Investigatory Powers Tribunal IPT) challenging the legality of this continued interception, domestic authorities did not find any contraventionofthe Act.

RSIs argumentsin the case

RSI argued that the procedure of communication interception allowed for the interception ofcommunications falling within the wide category set out in the warrant. The sole protection to those affectedwas the Secretary of States ability to make such u2018arrangements as he considered necessaryto ensure their communications would not be seenbyany person not covered by the Regulations.

RSI argued that in order to be compatible with Article 8 of the Convention,any interception must bein accordance with the law: it must haveabasis in domestic law that is adequatelyaccessible and formulated with sufficient clarity to be foreseeable.The arrangementsmade by the Secretary of Statedid not meet this standard. Theywere not made known to the public,nor were any procedures through whicha member of the publiccould find out what they were.

Thejudgmentin the case

TheCourtunanimously held that the Applicants right to respect for correspondence in Article 8 had beenviolated,andrecognised that the discretion granted to the UK Government wasextremely broad.

In recognising the Article 8 violation, theCourtbased its judgment ontheinadequacy of the surveillance system created by the Act morebroadlyandreasserted the Courts 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 communicationscould 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 tothe government.This failure meant that adequate protectionagainst the abuse of power was not provided,and therefore the Act was not in accordance with the law. In particular,theCourtfoundthatthe lack ofpublicly available procedures, regardingthe selection, sharing, storing, and destruction of intercepted data,didnot meet the standard required by its case law.

What does this mean for ourwork?

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 RSIs work to promote greater accountability inrelation tonational security-related harms, aswell as better access to justice for those who suffer suchharms.