The European Court of Human Rights has delivered its long-awaited judgment in three joined applications brought by 14 NGOs and other individuals following the Snowden disclosures. The Court found that the UK’s previous legislative regime for external surveillance under the Regulation of Investigatory Powers Act 2000 (“RIPA”) was incompatible with Article 8 ECHR and Article 10 ECHR.
The Applicants were a range of UK-based and international non-governmental organisations as well as individuals active in the fields of journalism and data privacy. The complaints in the three cases were triggered by disclosures by Edward Snowden as to the surveillance measures used by the UK and the US intelligence services, including the practices of intercepting electronic communications in bulk as well as the sharing of intercepted data between intelligence services.
The claims asserted interferences with the Applicants’ rights under Articles 8, 10 and 14 ECHR, as well as a challenge under Article 6 ECHR to the compatibility of the procedure before the specialist domestic tribunal, the Investigatory Powers Tribunal (IPT), in which some of the Applicants had brought complaints.
By a majority, the First Section of the Court accepted the utility and importance of bulk interception powers. It examined a number of recent amendments to the UK regime, including in Codes of Practice, and concluded that it was accessible and reasonably foreseeable.
However, it found that the UK regime concerning the bulk interception of “external communications” breached Article 8 ECHR in light of the “absence of robust independent oversight of the selectors and search criteria used to filter intercepted communications” (-). It also found that the regime for the acquisition of communications data by public authorities from communications service providers under Chapter II of RIPA breached Article 8 ECHR (at ). The Court found separate breaches by both regimes of the protection of journalistic material under Article 10 ECHR (at - and ).
The Court dismissed a challenge to the regime applicable to intelligence sharing by UK intelligence services (at -) and the remainder of the complaints.
James Eadie QC acted for the United Kingdom.