Grand Chamber holds UK’s Surveillance regime to be unlawful: new safeguards required for any secret surveillance regimes in the Council of Europe

The Grand Chamber of the European Court of Human Rights has handed down a very significant judgment in the joined appeals of Big Brother Watch and Others v. United Kingdom, finding that the UK government had, for some 15 years, operated a bulk digital surveillance regime in breach of the European Convention on Human Rights.

Importantly, the Court has now set out further guidance on the safeguards required for State surveillance regimes for compliance with the rights to privacy (Article 8) and freedom of expression (Article 10), guaranteed under the Convention.

Can Yeginsu and Anthony Jones represented the Center for Democracy and Technology before the Grand Chamber, as they did at first instance before the Court in two of the separate applications subsequently joined on appeal. For analysis of the ECtHR’s first Chamber decision of 18 September 2018, see the article authored by Ian McDonald and John Williams.

The case relates to the lawfulness of aspects of the UK’s bulk data and communications surveillance regime, the details of which came to light following the Edward Snowden leaks. As was revealed, the UK security agencies, in partnership with allied agencies internationally routinely tap, store, and secretly monitor vast amounts of telecommunications and Internet data. Those activities were meant to be carried out in compliance with the UK’s Regulation of Investigatory Powers Act 2000 (‘RIPA’), which has since been repealed.

The Grand Chamber has now confirmed that the RIPA framework for bulk surveillance in the UK was never compliant with Article 8 or Article 10 of the Convention. The decision also raises substantial questions for the Convention compliance of the replacement framework under the Investigatory Powers Act 2016.

In its judgment of 25 May 2021, the Grand Chamber affirmed its previous case law (in Weber and Saravia v. Germany and Liberty and Others v UK) that the operation of a bulk digital surveillance regime does not amount to a violation of the Convention per se: see §340. Further, the Grand Chamber has found that the process of data sharing with foreign security agencies is not necessarily unlawful, subject to minimum standards of protection: see §§500-516, albeit that four judges dissented on this ground.

But the Grand Chamber also took the opportunity to rationalize and bring consistency to the various tests and standards found in the pre-existing Convention case law on mass surveillance regimes and has identified eight aspects of a domestic surveillance regime that must be defined sufficiently clearly (and in sufficient detail) to ensure that, in practice, its operation strikes a fair balance with privacy rights under Article 8: see §361. Those aspects are:

  1. the grounds on which bulk interception may be authorized;
  2. the circumstances in which an individual’s communications may be intercepted;
  3. the procedure to be followed for granting authorization;
  4. the procedures to be followed for selecting, examining, and using intercept material;
  5. the precautions to be taken when communicating the material to others;
  6. the limits on the duration of interception and storage of intercepted material;
  7. the procedures for supervision by an independent authority for compliance; and
  8. the procedures for independent ex post review of such compliance.

This marks a shift in the Court’s caselaw on surveillance, towards greater Article 8 protections, with the Court recognizing that its previous jurisprudence had to be “adapted to reflect the specific features of a bulk interception regime” and that any such regime “must be subject to end-to-end safeguards”: see §§347-350.

Under Article 10, the Grand Chamber has set out specific safeguards to protect media freedoms in the context of digital mass surveillance regimes. In this regard, any surveillance regime must require:

  • A judge or other independent body to decide whether an “overriding requirement in the public interest” justifies searches using selectors that are connected with a journalist or that will probably identify confidential journalistic material, such as sources: see §448.
  • An independent determination of whether there is an overriding requirement in the public interest for continued use where it becomes apparent during the examination that material is confidential journalistic material: see §450.

Since the impugned RIPA regime had lacked such features, the Grand Chamber held unanimously that it was also incompatible with the right to freedom of expression under Article 10 of the Convention: see §§457–458.

A webcast of the oral hearing before the Grand Chamber in July 2019 is here.

The Grand Chamber’s judgment is here and its press release is here.

International news stories reporting the judgment are available through the following links: (i) The Guardian’s article; and (ii) Reuters’ article.

Can Yeginsu and Anthony Jones also acted in the case giving rise to the Grand Chamber’s 16 February 2021 landmark judgment in Hanan v. Germany, concerning the extra-territorial applicability of the Convention: see our news story on that judgment here.