Report of the Interception of Communications Commissioner - July 2016
Section 9
Complaints of unintentional electronic interception
9.1
The Regulation of Investigatory Powers (Monetary Penalty Notices and Consents
for Interception) Regulations 2011 (“the Regulations”) made amendments to Part I RIPA
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 UK had failed to adequately transpose European Union (EU) law requirements
concerning the confidentiality of electronic communications, specifically in relation to the
interception of communications.60
9.2
RIPA 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 circumstances61,
without a warrant. The changes to RIPA, brought about by the Regulations, relate to
interception without a warrant.
9.3
RIPA provides that CSPs may lawfully and legitimately intercept communications
when it is necessary for them to do so for specified purposes (for example, to manage
their networks).62 Where businesses choose to carry out interception to provide valueadded services, an activity which is carried out at the discretion of CSPs, RIPA requires
the consent of both the sender and the recipient of the communications that will be
intercepted.63 It also provides for a criminal sanction against intentional interception of
communications without lawful authority, thus providing additional protection for an
individual’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, a civil
sanction was created for the unlawful interception of electronic communications where
the interception does not meet the standard of intent required in the criminal offence.
Secondly, 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.
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 the Commissioner if he is
satisfied that certain communications have been intercepted without lawful authority
at any place in the UK. In addition, the Commissioner will need to be satisfied 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.
60 In particular, the E-Privacy Directive and the now defunct Data Protection Directive
61 See sections 3(1), 3(2), 3(3) and 1(5)(c) of RIPA
62 See section 3(3) of RIPA
63 See section 3(1) of RIPA
www.iocco-uk.info
73