UK government fined for violation of right to privacy

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THE EUROPEAN Court of Human Rights has ordered the British government to pay €7,500 in costs and expenses to the UK human rights organisation Liberty for violating its right to privacy by intercepting its telecommunications.

Liberty took the case along with the Irish Council for Civil Liberties (ICCL) and British-Irish Rights Watch over the interception of telephone, fax, e-mail and data between these organisations over a seven-year period, from 1991 to 1997.

The UK government, while refusing to disclose specifics, acknowledged these communications were likely to have been intercepted and stored en masse by an electronic test facility operated by the British ministry of defence.

It defended the interception on the grounds that, while the surveillance did violate the applicants’ right to privacy, this was necessary in the interests of national security, for the prevention of serious crime and to safeguard the economic wellbeing of the United Kingdom. It argued that there was a system of safeguards in place to ensure that people’s communications were not unnecessarily intercepted, and that appropriate procedures were followed.

Liberty argued that the “safeguards” that surrounded the interception were not accessible and not known to the public, so that people could not foresee the extent to which their privacy was being violated. This did not accord with the European Convention on Human Rights and the case law of the European Court of Human Rights, they said. The court found that the rules governing data interception in the United Kingdom did not “as required by the court’s case law, set out in a form accessible to the public any indication of the procedure to be followed for selecting for examination, sharing, storing and destroying intercepted material”.

While noting the arguments made by the UK government that revealing information on how the safeguards worked would inhibit the effectiveness of the surveillance regime, the court pointed out that the German government was able to spell out in legislation the regulations surrounding its interception of citizens’ telecommunications.

Finding that there had been a violation of the applicants’ right to privacy, as guaranteed by Article 8 of the European Convention on Human Rights, the court stated that the interference with the applicants’ rights was not “in accordance with the law”.

Welcoming the judgment, ICCL director Mark Kelly said: “The Strasbourg Court has vindicated the ICCL’s belief that data ‘fishing expeditions’ by the intelligence services will fall foul of Article 8 of the European Convention on Human Rights. The judges have found that the United Kingdom’s relatively sophisticated rules on data interception have failed to prevent unlawful interference with privacy rights.

“This has clear implications for Ireland’s lax data interception regime, which will require a thorough overhaul in order to ensure that it meets the standards required by the European Court of Human Rights.”

TJ McIntyre, chairman of Digital Rights Ireland and lecturer in law in University College Dublin, said that this judgment would be significant for the legal challenge to data retention currently being brought by Digital Rights Ireland in the High Court.

“This is a landmark case which casts further doubt on the legality of Ireland’s ‘data retention’ system, which tracks the telephone calls and internet use of all citizens without discrimination,” he said. “It is a clear statement from the court that indiscriminate surveillance will generally be incompatible with the right to privacy under the European Convention on Human Rights.”

© 2008 The Irish Times

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