Title: Liberty and Other organisations -v- the United Kingdom
EUROPEAN COURT OF HUMAN RIGHTS
Chamber judgment notified in writing on July 1st, 2008. Judgment was given by a chamber of seven judges, comprising Lech Garlicki (Polish), President, Nicolas Bratza (British), Ljiljana Mijovi, (citizen of Bosnia and Herzegovina), David Thór Björgvinsson (Icelandic), Ján Šikuta (Slovak), Päivi Hirvelä (Finnish) and Mihai Poalelungi (Moldovan), judges, and also Lawrence Early, section registrar.
JUDGMENT
The court held unanimously that the interception of communications without accessible safeguards constituted a violation of Article 8 (right to respect for private and family life and correspondence) of the European Convention on Human Rights.
Under Article 41 (just satisfaction) of the convention, the court considered that the finding of a violation constituted sufficient just satisfaction for any non-pecuniary damage caused to the applicants, and awarded them €7,500 for costs and expenses.
BACKGROUND
The applicants were Liberty, British Irish Rights Watch and the Irish Council for Civil Liberties - a British group and two Irish civil liberties groups, which are based in London and Dublin, respectively.
The case concerned the applicant organisations' allegation that, between 1990 and 1997, their telephone, facsimile, e-mail and data communications, including legally privileged and confidential information, were intercepted by an electronic test facility operated by the British Ministry of Defence.
The applicants lodged complaints with the Interception of Communications Tribunal, the Director of Public Prosecutions and the Investigatory Powers Tribunal to challenge the lawfulness of the alleged interception of their communications, but to no avail. The local courts found, in particular, that there was no contravention of the Interception of Communications Act 1985.
The application was lodged with the European Court of Human Rights on September 9th, 1999.
The applicants complained that telephone, facsimile, e-mail and data communications between them were intercepted between 1990 and 1997. They alleged that the process involved five elements, which they listed.
Firstly, a warrant would be issued specifying an external communications link or links to be physically intercepted, which covered very broad classes of communications. Secondly, the secretary of state would issue a certificate describing the categories of information that could be extracted from the total volume of communications. These certificates were formulated in very general terms. Thirdly, this was filtered by a search engine.
Fourthly, a system of rules was in place to promote minimisation of interference with privacy. The fifth and final stage was dissemination to recipients, to the extent and in a manner proportionate to the circumstances.
The applicants argued that since the procedure permitted the interception of all communications falling within the large category set out in each warrant, the only protection to those affected was that the secretary of state would make "such arrangements as he considers necessary" to ensure that they were not seen by any person not covered by the regulations.
However, they said that these arrangements were not made known to the public, nor was there any procedure whereby a member of the public could find out what they were.
They claimed that, to be compatible with Article 8, any interception should be "in accordance with the law" and thus have a basis in domestic law that was adequately accessible and formulated with sufficient precision as to be foreseeable.
The United Kingdom government responded that "disclosure of the arrangements would reveal important information about the methods of interception used" and would therefore be contrary to the interests of national security. "It would enable individuals to adapt their conduct so as to minimise the effectiveness of any interception method which it might be thought necessary to apply to them," it said.
It also argued that the manuals and instructions setting out the safeguards were not in a form comprehensible to anyone who had not received training in using them. It said that the warrant regime was proportionate and "necessary in a democratic society".
DECISION
The court recalled that it had previously found that the mere existence of legislation which allowed communications to be monitored secretly had entailed a surveillance threat for all those to whom the legislation might be applied. In the applicants' case, the court therefore found that there had been an interference with their rights as guaranteed by Article 8.
Section 3(2) of the 1985 Act allowed the British authorities extremely broad discretion to intercept communications between the UK and an external receiver, namely the interception of "such external communications as described in the warrant".
Indeed, that discretion was virtually unlimited. Warrants under section 3(2) of the 1985 Act covered very broad classes of communications. In their observations to the court, the British government accepted that, in principle, any person who sent or received any form of telecommunication outside the British Islands during the period in question could have had their communication intercepted under a section 3(2) warrant.
Furthermore, under the 1985 Act, the authorities had wide discretion to decide which communications, out of the total volume of those physically captured, were listened to or read.
Under section 6 of the 1985 Act, the secretary of state was obliged to "make such arrangements as he consider [ed] necessary" to ensure a safeguard against abuse of power in the selection process for the examination, dissemination and storage of intercepted material.
Although during the relevant period there had been internal regulations, manuals and instructions to provide for procedures to protect against abuse of power, and although the commissioner appointed under the 1985 Act to oversee its workings had reported each year that the "arrangements" were satisfactory, the nature of those "arrangements" had not been contained in legislation, or otherwise made available to the public.
Lastly, the court noted the British government's concern that the publication of information regarding those arrangements during the period in question might have damaged the efficiency of the intelligence-gathering system, or given rise to a security risk.
However, in the UK, extensive extracts from the Interception of Communications Code of Practice were now in the public domain, which suggested that it was possible for the state to make public certain details about the operation of a scheme of external surveillance, without compromising national security.
In conclusion, the court considered that the domestic law at the relevant time had not indicated with sufficient clarity, so as to provide adequate protection against abuse of power, the scope or manner of exercise of the very wide discretion conferred on the state to intercept and examine external communications. In particular, it had not set out in a form accessible to the public any indication of the procedure to be followed for examining, sharing, storing and destroying intercepted material.
The interference with the applicants' rights had not therefore been "in accordance with the law", in violation of Article 8.
The applicants were represented by Mr Alex Gask, a lawyer practising in London. The United Kingdom government ("the government") was represented by their agent, D Walton, Foreign and Commonwealth Office.