CHAPTER 5: LEGAL CONSTRAINTS
ECHR: specific issues
5.25.
The ECtHR has considered surveillance and interception of communications on a
number of occasions. In the course of those judgments, it has addressed a number
of specific issues that are particularly relevant to this Review.
Distinction between content and ‘communications data’
5.26.
As set out in at 6.3-6.7 below, the current RIPA framework distinguishes between
obtaining access to the content of communications (via interception), and the use of
communications data. The majority of cases that have reached the ECtHR have
concerned interception.34 But as explained at 7.43-7.51 below, communications data
play an important role in policing and counter-terrorism in the UK. Investigative
agencies are often just as interested in who has been communicating with whom, and
where from, as what the parties actually said to one another.
5.27.
The Strasbourg case law is clear that both the collection of communications data and
the interception of content interfere with Article 8.35 In some cases, there are hints in
the ECtHR jurisprudence that they may legitimately be treated differently. In Malone
v UK the Applicant complained that his phone calls were not only being recorded but
metered, in the sense that records were being kept regarding to whom he had spoken
and when. The ECtHR commented that:
“By its very nature, metering is … to be distinguished from interception of
communications, which is undesirable and illegitimate in a democratic society
unless justified...” (para 84).36
5.28.
However, more recent cases do not appear to follow such a distinction, and it at least
appears that in some circumstances the difference is of no significance. In the Liberty
IPT case, the IPT referred to six principles set out below (from Weber v Germany) and
concluded that they should apply to both kinds of material:
“In the case-law on secret measures of surveillance, the Court has developed
the following minimum safeguards that should be set out in statute law in order
to avoid abuses of power (1) the nature of the offences which may give rise to
an interception order; (2) a definition of the categories of people liable to have
their telephones tapped; (3) a limit on the duration of telephone tapping; (4) the
procedure to be followed for examining, using and storing the data obtained;
(5) the precautions to be taken when communicating the data to other parties;
and (6) the circumstances in which recordings may or must be erased or the
tapes destroyed.”37
34
35
36
37
See for example Malone v UK; Weber v Germany; Liberty v UK; Kennedy v UK.
Malone v UK, para 84; Copland v United Kingdom (Application no. 62617/00, judgment of 03 April 2007),
paras 39-47.
Cf. Uzun v Germany (Application no. 35623/05, judgment of 2 September 2010), in which the “rather
strict standards” applicable to the interception of telephone conversations were held not to apply to the
placing of a GPS tracking device in a car, para 66.
Weber v Germany para 95, cited in the Liberty IPT case, judgment of 5 December 2014, para 114.
77