CHAPTER 5: LEGAL CONSTRAINTS
circumstances in which and the conditions on which public authorities” will access
their communications.28
5.21.
The second element of the test involves the identification of a legitimate aim whose
pursuit is necessary. Article 8(2) (set out at 5.16 above) provides a broad list of
interests that are capable of justifying interference. The courts are almost always
willing to find that a legitimate aim is being pursued, for example, national security or
the prevention of crime. “Necessary” means less than “indispensable”, but more than
merely “admissible” or “useful”. To be necessary, an interference must correspond to
a “pressing social need”.
5.22.
To satisfy the third element of the test, the interference must be proportionate to the
aim pursued. That is determined via a balancing exercise, which may for example
require “the interest of the … state in protecting its national security” to be balanced
against “the seriousness of the interference with the applicant’s right to respect for his
private life”.29 The ECtHR has repeatedly noted that:
(a)
States have a “margin of appreciation” (or, in the national court, a discretionary
area of judgement). However, the court is the ultimate arbiter of necessity.
(b)
In order to be satisfied that the interference is proportionate, courts must be
satisfied that the national law sets out sufficient safeguards against abuse, and
that those safeguards have been followed in the particular case (if
appropriate).30
5.23.
The case law of the ECtHR concerning surveillance has largely focused on the first
element: the requirement that any interference is “in accordance with the law”. There
is a degree of overlap between the first and third elements, particularly in respect of
the procedural safeguards against abuses. As a result, there is a trend in some of the
recent case law to consider those two elements together.31
5.24.
Neither before the IPT nor in the ECtHR do those wishing to complain about a violation
of their Article 8 rights have to demonstrate conclusively that their communications
have been interfered with. It is enough for them to satisfy the court that it is reasonably
likely that they were the subject of targeted surveillance.32 Where bulk collection is
concerned, an even more liberal test may apply.33
28
29
30
31
32
33
Silver v UK, para 88; Malone v UK, para 67; Kruslin v France (Application no. 11801/85, judgment of 24
April 1990), para 33; Weber v Germany, paras 93-94. For the requirement of foreseeability, in a different
context, see Khan v United Kingdom (Application no. 35394/97, judgment of 4 October 2000). The
absence of any guidelines concerning the use of listening devices in private property meant that their
use was not in accordance with the law.
Leander v Sweden, para 59. For an example of a proportionality assessment in a related context, the
indefinite “blanket retention” of suspects’ fingerprints, cellular samples and DNA profiles, see S and
Marper v UK (Application nos. 30562/04 and 30566/04, judgment of 4 December 2008), paras 118-126.
See Silver v UK, para 97; Leander v Sweden, paras 59-62; Weber v Germany, para 106.
See for example Kvasnica v Slovakia (Application no. 72094/01, judgment of 9 June 2009), para 84;
and Kennedy v UK, para 155.
Kennedy v UK, para 123, Stefanov v Bulgaria, para 49.
Weber v Germany, paras 78-79; Liberty v UK, paras 56-57.
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