32
MALONE v. THE UNITED KINGDOM JUGDMENT
authorities. To that extent, the minimum degree of legal protection to which
citizens are entitled under the rule of law in a democratic society is lacking.
(iii) Conclusion
80. In sum, as far as interception of communications is concerned, the
interferences with the applicant’s right under Article 8 (art. 8) to respect for
his private life and correspondence (see paragraph 64 above) were not "in
accordance with the law".
(b) "Necessary in a democratic society" for a recognised purpose
81.
Undoubtedly, the existence of some law granting powers of
interception of communications to aid the police in their function of
investigating and detecting crime may be "necessary in a democratic society
... for the prevention of disorder or crime", within the meaning of paragraph
2 of Article 8 (art. 8-2) (see, mutatis mutandis, the above-mentioned Klass
and Others judgment, Series A no. 28, p. 23, para. 48). The Court accepts,
for example, the assertion in the Government’s White Paper (at para. 21)
that in Great Britain "the increase of crime,and particularly the growth of
organised crime, the increasing sophistication of criminals and the ease and
speed with which they can move about have made telephone interception an
indispensable tool in the investigation and prevention of serious crime".
However, the exercise of such powers, because of its inherent secrecy,
carries with it a danger of abuse of a kind that is potentially easy in
individual cases and could have harmful consequences for democratic
society as a whole (ibid., p. 26, para. 56). This being so, the resultant
interference can only be regarded as "necessary in a democratic society" if
the particular system of secret surveillance adopted contains adequate
guarantees against abuse (ibid., p. 23, paras. 49-50).
82. The applicant maintained that the system in England and Wales for
the interception of postal and telephone communications on behalf of the
police did not meet this condition.
In view of its foregoing conclusion that the interferences found were not
"in accordance with the law", the Court considers that it does not have to
examine further the content of the other guarantees required by paragraph 2
of Article 8 (art. 8-2) and whether the system circumstances.
B. Metering
83. The process known as "metering" involves the use of a device (a
meter check printer) which registers the numbers dialled on a particular
telephone and the time and duration of each call (see paragraph 56 above).
In making such records, the Post Office - now British Telecommunications makes use only of signals sent to itself as the provider of the telephone
service and does not monitor or intercept telephone conversations at all.