Information Note on the Court’s case-law 191
December 2015
10 human-rights organisations v. the United Kingdom (communicated case) - 24960/15
Article 8
Article 8-1
Respect for correspondence
Respect for private life
Alleged mass surveillance of human-rights organisations: communicated
Article 10
Article 10-1
Freedom to impart information
Freedom to receive information
Alleged mass surveillance of human-rights organisations: communicated
The applicants are ten human-rights organisations. They communicate on a regular basis with a range of groups and individuals, both nationally and internationally, as part of their human-rights activities. The information contained in their communications frequently includes material which is sensitive, confidential and, in some cases, legally privileged.
Because of the nature of their activities, the applicants believe that it is very likely that the content of their private communications and their communications data have been obtained by the United Kingdom intelligence services via interception powers exercised pursuant to the Regulation of Investigatory Powers Act 2000 (RIPA), under the domestic interception and collection programme, Tempora, or by way of the Prism or Upstream programmes operated by the United States National Security Agency (NSA).
Between June and December 2013 the applicants lodged complaints with the Investigatory Powers Tribunal (IPT) alleging that the intelligence services and the UK Home and Foreign Secretaries had acted in violation of Articles 8, 10, and 14 of the Convention. In the absence of any confirmation or denial by the Government that the applicants’ communications had actually been intercepted, the IPT determined the legal issues on the basis that they had, the question being whether, on that assumption, the interception, retention, storage and sharing of the applicants’ data were in accordance with the law under Articles 8 and 10, taken alone and together with Article 14. The internal arrangements regulating the conduct and practice of the intelligence services were examined in a closed hearing at which the applicants were neither present nor represented. Following that hearing the Government disclosed information about the arrangements to the applicants in a note of 9 October 2014.
The IPT considered the applicants’ complaints in three judgments of 5 December 2014, and 6 February and 22 June 2015. It found in relation to the receipt of intercept material from Prism and Upstream that the internal arrangements had since the 9 October 2014 disclosure by the Government been sufficiently signposted and that they were also subject to appropriate oversight. The arrangements had thus contravened Articles 8 or 10 of the Convention prior to the disclosure, but no longer did so.
As regards interceptions of external communications pursuant to a warrant issued under section 8(4) RIPA, the IPT found that the regime and safeguards were sufficiently compliant with the requirements the European Court had laid down in Weber and Saravia for the interference to be “in accordance with the law” for the purposes of Article 8 of the Convention. It did, however, find two “technical” breaches of Article 8 concerning in one instance the retention for longer than permitted of lawfully intercepted material and in the other a failure to follow the proper selection-for-examination procedure. It made no award of compensation.
In their applications to the European Court the applicants argue that the legal framework governing the interception of communications content and data is incompatible with Articles 8 and 10 of the Convention and that the interference resulting from the Tempora programme is not “necessary in a democratic society” as communications are intercepted and retained without any reasonable suspicion and there is no judicial oversight or authorisation for interception. The applicants also complain under Article 6 that the proceedings before the IPT violated their right to a fair hearing, in particular in that the IPT had wrongly held closed hearings, failed to ensure they were effectively represented in those hearings and failed to order the disclosure of documents. Finally, the applicants complain under Article 14 in conjunction with Articles 8 and 10 that the RIPA framework is indirectly discriminatory on grounds of nationality and national origin since it grants additional safeguards to people known to be in the British islands but denies them to those abroad.
Communicated under Articles 6, 8 and 10 and under Article 14 in conjunction with Articles 8 and 10.
(See also Roman Zhakarov v. Russia [GC], 47143/06, 4 December 2015, Information Note 191; Weber and Saravia v. Germany (dec.), 54934/00, 29 June 2006, Information Note 88; and Kennedy v. the United Kingdom, 26839/05, 18 May 2010, Information Note 130; see, more generally, the Handbook on European data protection law)
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
Click here for the Case-Law Information Notes
Full & Egal Universal Law Academy