On May 25, 2021, the Grand Chamber of the European Court of Human Rights ruled in the Big Brother Watch and Others v. Great Britain case that the former surveillance regime in the UK violated Article 8 of the European Convention on Human Rights (“ECHR”), ie the right to respect for Private and family life.
It has been determined that the regulation established under the Regulation of Investigatory Powers Act 2000 (“RIPA”) has now been superseded by the Investigatory Powers Act 2016 (“IPA”) against Article 8 relating to the permitting regulations of mass surveillance and obtaining communication data from communication service providers. The Grand Chamber also found that the surveillance regime violated freedom of expression under Article 10 of the ECHR on both counts.
Importantly, the Grand Chamber came to the conclusion that mass surveillance per se does not violate the ECHR, given the “multitude of threats to which states are exposed in modern society”. The mass surveillance must, however, be subject to continuous protective measures, ie assessments should be made with regard to the necessity and proportionality of the measures used. Mass surveillance should also require independent approval before it begins, when the purpose and scope of the measures are determined. In addition, the Grand Chamber stated that the use of mass surveillance should be subject to surveillance and an independent ex post facto review.
The case was brought up by journalists and human rights defenders who also opposed the regime’s rules for obtaining material intercepted by foreign governments and intelligence agencies. Regarding this latter objection, the Grand Chamber found that there was no violation of the ECHR, as adequate safeguards were in place to protect against abuse and to ensure that the UK authorities did not use such requests to circumvent their obligations under domestic law and the ECHR.
The Grand Chamber found that the RIPA regime did not consist in allowing mass surveillance to be approved by the Foreign Minister rather than an independent body. The requests for arrest warrants also did not include categories of search terms defining the types of communications that would be subject to scrutiny. Personal search terms, ie certain identifiers, were also not subject to prior internal approval. With regard to Article 10, the Grand Chamber found that RIPA did not provide sufficient protection for confidential journalistic material.
RIPA has been replaced by the IPA and the Grand Chamber did not directly assess the legality of the IPA’s provisions in its judgment. The European Data Protection Board recently drew attention to the IPA in its opinion on the draft adequacy decision of the United Kingdom of the European Commission of 19 February 2021 and raised several concerns about the scope of the IPA and the level of protection it offers. The IPA is also currently being challenged by the human rights organization Liberty over the extensive wiretapping powers it grants police and security services.