tracking of a vehicle on the public roads. The UK’s case places form over
substance and is inconsistent with the principle underpinning the
Convention, that it “guarantees rights that are practical and effective and
not theoretical and illusory”.131
236.
A similar argument made by the UK was rejected by the Court in R.E v
UK. There, the Court held that “the decisive factor will be the level of
interference with an individual’s right to respect for his or her private life
and not the technical definition of that interference” (§130). If the degree of
interference with privacy is similar to interception, the Weber standards
set out minimum requirements, to be enhanced as necessary in light of
Szabo and the development of modern mass surveillance practices.
237.
The starting point is that intercepting communications is regarded as a
particularly serious interference with privacy. The Court held as far back
as Malone v UK (1985) 7 EHRR 14 that interception of communication is a
“secret and potentially dangerous interference with the right to respect for
private life and correspondence” (§67) and that therefore particular
safeguards are required for such activity. Interception of communications
is thus treated differently to other forms of state surveillance in terms of
the interference with privacy which it entails.
238.
If the State is to be permitted to intercept communications the Court has
required particularly strict attendant safeguards. When one considers how
much more of individuals’ private lives can now be revealed through
examining their intercepted communications and communications data
(whether in the form of emails, text-messages, internet searches or
location of mobile phones) than was the case at the time of Malone, or
indeed when RIPA was enacted, the dangers for privacy of such
See among many other authorities, Airey v Ireland (1979–80) 2 EHRR 305, §24; Imbrioscia
(1994) 17 EHRR 441, §38; Goddi v Italy (1984) 6 EHRR 457, §30; and Salduz (2009) 49 EHRR 19,
§55.
131
92