Landmark ECHR Judgment on State Surveillance Powers

13 Sep 2018 | by Monckton Chambers

Today’s judgment by the European Court of Human Rights (ECHR) in Strasbourg presents a significant win for the Applicants behind the three joined cases of Big Brother Watch v. the United Kingdom, Bureau of Investigative Journalism v. the United Kingdom and Ten Human Rights NGOs v. the United Kingdom. The landmark judgment marks the court’s first ruling on UK mass surveillance programmes including bulk interception of communications, intelligence-sharing with foreign governments and obtaining of data from service providers.

The Applicants represent a range of human rights organisations, including non-governmental organisations as well as individuals active in the fields of journalism and data privacy. The submissions were triggered as a result of the revelations regarding the invasive surveillance by GCHQ and other agencies exposed by Edward Snowden in 2013.

The complaints centred on articles 8 and 10 of the convention of human rights, which protect a right to a private family life, and freedom of expression. The court found that both the bulk interception regime and that for obtaining communications data from service providers violated the right to privacy. However, operating a bulk interception regime did not of itself violate the European Convention on Human Rights but that any such regime must contain adequate safeguards against abuse. The regime for intelligence sharing was found lawful.

Specifically in the BIJ’s case the Court found that the interception of external communications, without adequate safeguards to protect the freedom of the press, is unlawful and contrary to the right to free expression and the right of journalists to protect journalistically privileged information, including their sources. It will force the government to review how it intercepts journalists’ communications and to put better safeguards in place to ensure that a journalist can continue to properly protect their sources.

Monckton’s Conor McCarthy was instructed as counsel by the Bureau of Investigative Journalism (BIJ) in Bureau of Investigative Journalism v. the United Kingdom, while Eric Metcalfe acted for the ACLU, Liberty, the Canadian Civil Liberties Association, the Egyptian Centre for Personal Rights, the Hungarian Civil Liberties Union, the Irish Council for Civil Liberties, and the South-African-based Legal Resources Centre (six of the ten NGOs in Ten Human Rights NGOs v the United Kingdom). The parties are pointing out that the UK’s surveillance laws and practices affect the privacy and other rights of millions of people around the world, in part because major internet cables run from and to UK territory.

See BIJ news release here.

See Amnesty International, one of the TEN NGOs, news release here.

See Liberty, one of the TEN NGOs, news release here.

The Judgment was widely covered in the media including The Times, Sky news, The Independent and The Guardian.