Richard O’Brien represents the United Kingdom in landmark case before the European Court of Human Rights concerning state interception of communications.
On 12 September 2023 the European Court of Human Rights (“EtCHR”) handed down judgment in Wieder & Guarnieri v United Kingdom (application no. 64371/16 and 64407/16), a case concerning alleged interception by GCHQ of electronic communications sent by non-British nationals located outside the UK.
The applicants were a German and an American national who alleged that bulk interception of communications by GCHQ meant that their communications had been, or were at risk of being, intercepted by GCHQ in breach of their right to respect for privacy and to freedom of express under Articles 8 and 10 of the European Convention on Human Rights (“ECHR”).
Their claim had been dismissed by the UK’s Investigatory Powers Tribunal on the basis that interception of communications of foreign citizens located outside the UK did not fall within the scope or jurisdiction of the ECHR. They applied to the ECtHR to overturn that decision.
In a landmark ruling the ECtHR partly upheld their application, finding that even if GCHQ intercepted communications outside the UK, if it subsequently searched, examined and used them within the UK, that would be sufficient to give rise to a jurisdictional link. Breach of the applicants’ right to respect for privacy was also established, because of inadequate safeguards against abuse in the relevant UK legal regime. However, the ECtHR rejected the applicants’ complaint that their right to freedom of expression had been breached, as neither of the applicants were journalists, and they could therefore not claim that sources would be reluctant to communicate with them because of GCHQ’s interception capabilities.
Richard acted for the UK Government along with Sir James Eadie KC and Julian Milford KC. You can read the judgment here.