MALONE v. THE UNITED KINGDOM JUGDMENT
33
From this, the Government drew the conclusion that metering, in contrast to
interception of communications, does not entail interference with any right
guaranteed by Article 8 (art. 8).
84.
As the Government rightly suggested, a meter check printer
registers information that a supplier of a telephone service may in principle
legitimately obtain, notably in order to ensure that the subscriber is correctly
charged or to investigate complaints or possible abuses of the service. By its
very nature, metering is therefore to be distinguished from interception of
communications, which is undesirable and illegitimate in a democratic
society unless justified. The Court does not accept, however, that the use of
data obtained from metering, whatever the circumstances and purposes,
cannot give rise to an issue under Article 8 (art. 8). The records of metering
contain information, in particular the numbers dialled, which is an integral
element in the communications made by telephone. Consequently, release
of that information to the police without the consent of the subscriber also
amounts, in the opinion of the Court, to an interference with a right
guaranteed by Article 8 (art. 8).
85. As was noted in the Commission’s decision declaring Mr. Malone’s
application admissible, his complaints regarding metering are closely
connected with his complaints regarding interception of communications.
The issue before the Court for decision under this head is similarly limited
to the supply of records of metering to the police "within the general context
of a criminal investigation, together with the legal and administrative
framework relevant [thereto]" (see paragraph 63 above).
86. In England and Wales, although the police do not have any power,
in the absence of a subpoena, to compel the production of records of
metering, a practice exists whereby the Post Office do on occasions make
and provide such records at the request of the police if the information is
essential to police enquiries in relation to serious crime and cannot be
obtained from other sources (see paragraph 56 above). The applicant, as a
suspected receiver of stolen goods, was, it may be presumed, a member of a
class of persons potentially liable to be directly affected by this practice.
The applicant can therefore claim, for the purposes of Article 25 (art. 25) of
the Convention, to be a "victim" of a violation of Article 8 (art. 8) by reason
of the very existence of this practice, quite apart from any concrete measure
of implementation taken against him (cf., mutatis mutandis, paragraph 64
above). This remains so despite the clarification by the Government that in
fact the police had neither caused his telephone to be metered nor
undertaken any search operations on the basis of any list of telephone
numbers obtained from metering (see paragraph 17 above; see also, mutatis
mutandis, the above-mentioned Klass and Others judgment, Series A no. 28,
p. 20, para. 37 in fine).
87. Section 80 of the Post Office Act 1969 has never been applied so as
to "require" the Post Office, pursuant to a warrant of the Secretary of State,