September 24, 2018

In 2013 Big Brother Watch, other human rights organisations and the Bureau of Investigative Journalism, issued three separate applications in the ECtHR against the UK, following revelations by Edward Snowden relating to the electronic surveillance programmes operated by the intelligence services of the USA and the UK. The three applications were heard together.

Relying on Article 8 (right to respect for private and family life and correspondence), the applicants complained about the regimes for the bulk interception of communications, intelligence sharing and for the acquisition of data from CSPs under RIPA.

The second and third applications also raised complaints under Article 10 (freedom of expression) related to their work, as journalists and non-governmental organisations.

Section 8(4) of RIPA allows the Secretary of State to issue warrants for the “interception of external communications”. Pursuant to s 16, intercepted material cannot be selected to be read, looked at or listened to.

The ECtHR found that operating a bulk interception scheme was not per se in violation of the ECHR, and governments had a wide discretion in deciding what kind of surveillance scheme was necessary to protect national security. However, the operation of such systems had to meet six basic requirements, as set out in Weber and Saravia v Germany 54934/00 [2006] ECHR 1173.

The ECtHR noted that interference with the applicants’ Article 8 rights could only be justified if it was in accordance with the law, pursued one or more legitimate aims, and was necessary in a democratic society in order to achieve any such aim.

The ECtHR was satisfied that the UK intelligence services took their ECHR obligations seriously and were not abusing their powers under s 8(4). Nevertheless, there were two principal areas of concern: first, the lack of oversight of the entire selection process, including the selection of bearers for interception, the selectors and search criteria for filtering intercepted communications, and the selection of material for examination by an analyst; and secondly, the absence of any real safeguards applicable to the selection of related communications data for examination.  The ECtHR therefore found that the s 8(4) regime did not meet the “quality of law” requirement and was incapable of keeping the “interference” to what was “necessary in a democratic society”. Accordingly, there had been a violation of Article 8.

As for the intelligence-sharing regime, the ECtHR was satisfied that there was a basis in law for the requesting of intelligence from foreign intelligence agencies, and that the law was sufficiently accessible and pursued several legitimate aims. Further, the ECtHR considered the relevant domestic law and code indicated with sufficient clarity the procedure for requesting either interception or the conveyance of intercept material from foreign intelligence agencies. There was no evidence of any significant shortcomings in the application and operation of the regime. Accordingly, there had been no violation of Article 8.

As for the acquisition of data from CSPs under Chapter II of RIPA, the ECtHR noted that under EU law, access to communications data from CSPs was limited to the purpose of combating “serious crime” and was subject to prior review by a court or independent administrative body. Conversely, the Chapter II regime permitted access to retained data for the purpose of combating crime (rather than “serious crime”) and, save for where access was sought for the purpose of determining a journalist’s source, it was not subject to prior review by a court or independent administrative body, it was not, therefore, in accordance with the law within the meaning of Article 8.

As for Article 10, the ECtHR found that both the bulk interception regime and the regime for obtaining communications data from CSPs violated Article 10, as there were insufficient safeguards in respect of confidential journalistic material.

RIPA has been replaced by the Investigatory Powers Act 2016. However, the ECtHR’s judgment in this case is likely to provoke further questions as to the adequacy of the safeguards set out in the IPA. (Big Brother Watch v United Kingdom [2018] ECHR 722 (13 September 2018) — to read the judgment in full, click here).