Report of the Interception of Communications Commissioner - March 2015
Section 9
Civil Monetary Complaints Function
9.1
The Regulation of Investigatory Powers (Monetary Penalty Notices and Consents
for Interception) Regulations 2011 (“the Regulations”) made amendments to Part I RIPA
2000 and provided additional protection for the users of electronic communications. In
so doing, the Regulations addressed the concern expressed by the European Commission
that the United Kingdom had failed to adequately transpose European Union (EU) law49
requirements concerning the confidentiality of electronic communications, specifically in
relation to the interception of communications.
9.2
RIPA 2000 regulates the lawful interception of communications for a range of
legitimate purposes. It provides that interception can be lawfully undertaken either
in accordance with a warrant signed by the Secretary of State or, in other specified
circumstances50, without a warrant. The changes to RIPA 2000, brought about by the
Regulations, relate to interception without a warrant.
9.3
RIPA 2000 provides that communications service providers may lawfully and
legitimately intercept communications when it is necessary for them to do so for specified
purposes51. Where businesses choose to carry out interception to provide value-added
services, an activity which is carried out at the discretion of service providers, RIPA 2000
requires the consent of both the sender and the recipient of the communications that will
be intercepted52. It also provides for a criminal sanction against intended the interception
of communications without lawful authority, thus providing additional protection for a
person’s privacy.
9.4
To address the deficiencies in the statutory regime that were identified by the
European Commission, the Regulations amended RIPA in two respects. First, they created
a civil sanction for the unlawful interception of electronic communications where the
interception does not meet the standard of intent required in the criminal offence.
Second, the Regulations clarified the nature of the consent that must be given by a party
consenting to the interception of a communication to render that interception lawful.
As a consequence, the words “reasonable grounds for believing” were removed from
section 3 of RIPA 2000.
9.5
The Regulations introduce a monetary penalty that can be imposed, together
with a requirement that the activity that has been determined to be unlawful under the
regulations must stop. The sanction may be imposed by me if I am satisfied that certain
communications have been intercepted without lawful authority at any place in the
United Kingdom. In addition, I will need to satisfy myself that the actions are not already
covered by the existing criminal offence of intercepting without lawful authority, and that
the unlawful interception did not occur whilst attempting to act in accordance with an
interception warrant.
9.6
The Regulations (and therefore the Interception Commissioner’s responsibilities
49 In particular, the E-Privacy Directive and the Data Protection Directive
50 See sections 3(1), 3(2), 3(3) and 1(5)(c) of Part RIPA
51 See section 3(3) of RIPA
52 See section 3(1) of RIPA
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