European Union: United Kingdom Surveillance Fails To Protect Privacy And Provides Insufficient Safeguards For Freedom Of Expression

On 13 September 2018, the Strasbourg-based European Court of Human Rights (the "ECtHR") handed down its landmark judgment in Big Brother Watch and Others v. the United Kingdom. In this highly anticipated judgment, the ECtHR held that several aspects of UK secret surveillance programmes violated Article 8 (right to respect for private life) and Article 10 (freedom of expression) of the European Convention on Human Rights (the "Convention").

The cases before the ECtHR were brought by journalists and human rights activists following the Snowden revelations. In 2013, Edward Snowden revealed the existence of far-reaching surveillance and intelligence-sharing programmes in the USA and the UK. The claims brought before the ECtHR relate to three surveillance regimes used by the UK government under the UK Regulation of Investigatory Powers Act of 2000: (i) bulk interception of communications; (ii) intelligence-sharing with foreign governments; and (iii) acquisitions of communications data from communications service providers.

Violations under Article 8

Article 8 of the Convention protects an individual's right to respect for private and family life both at home and in correspondence. According to established case law, the ECtHR considers interception of communications to represent "one of the gravest intrusions" into an individual's private life. Therefore, interception by public authorities needs a legitimate purpose and is limited to what is lawful and "necessary in a democratic society".

The judgment identified two important forms of protection that were lacking in the UK government's bulk interception regime, namely insufficient independent oversight of the "selectors and search criteria used to filter intercepted communications" and inadequate safeguards "applicable to the selection of related communications data for examination". The ECtHR argued that the lack of these protections in the surveillance regimes made it impossible to limit the interception to what is "necessary in a democratic society" and, consequently, violated an individual's right to privacy under Article 8.

The ECtHR added that according to EU Law, any regime allowing access to data held by communications service providers had to be limited to the purpose of combating "serious crime". Such access is required by EU Law to be subject to prior review by a court or an independent administrative body. The UK regime allowed access for the general purpose of combating crime (without any limitation to "serious" crime) and without making access subject to prior review. Therefore, the ECtHR held that the UK regime failed to meet the "in accordance with the law" requirement of Article 8 of the Convention.

Violations under Article 10

Article 10 of the Convention protects an individual's right to freedom of expression. The ECtHR considered that the UK law lacked sufficient protections for confidential journalistic material. An interception is incompatible with Article 10 of the Convention "unless it is justified by a prevailing requirement in the public interest". The UK surveillance regimes do not contain such requirements that would limit the agency's ability to search and examine confidential journalistic material. Therefore, the ECtHR held that the bulk interception regime falls short of the requirements under Article 10 of the Convention.

In addition, the ECtHR found the regime for obtaining communications data from communications service providers to provide insufficient safeguards to conform to Article 10 of the Convention. In particular, it held that the system contained insufficient safeguards limiting the access to the data.

Interestingly, the ECtHR held that metadata should not be treated any differently than communications content in terms of privacy safeguards.

The UK has updated the relevant laws and regulations since the proceedings were initiated. Therefore, it will now be for the UK government – and other EU countries – to assess whether their surveillance programmes comply with the requirements set out by the ECtHR.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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