Privacy: A Very Short Introduction by Raymond Wacks

Author:Raymond Wacks
Language: eng
Format: epub, pdf
ISBN: 9780198725947
Publisher: OUP Oxford
Published: 2014-12-26T05:00:00+00:00

Europe

The European Court of Human Rights has been particularly energetic in this area. It is instructive briefly to compare two of its important, early decisions on the subject, one relating to Germany, the other to the UK. The telephone-tapping in Klass v Federal Republic of Germany complied with the German statute. In Malone v United Kingdom, however, it was conducted without a comprehensive legislative framework. Although both involved analogue telephones, the principles expressed are sufficiently general to apply to digital telephony, as well as to the interception of written correspondence, and perhaps also to other forms of surveillance.

German law sets out stringent restrictions on interception including the requirement that applications be made in writing, that a basis should exist in fact for suspecting a person of planning, committing, or having committed certain criminal or subversive acts, and that the surveillance should cover only the specific suspect or his or her presumed contact persons: exploratory or general surveillance is therefore not permitted. The law provides also that it must be shown that other investigatory methods would be ineffective or considerably more difficult. The interception should be supervised by a judicial officer who may reveal only information that is relevant to the inquiry; he or she is obliged to destroy any remaining information that has been collected. The relevant intercepted information must then also itself be destroyed when no longer required; it may not be used for any other purpose.

Furthermore, the law requires that an interception be immediately discontinued as soon as the requirements for it have ended, and that the subject be notified as soon as it is possible to do so without jeopardizing the purpose of the interception. The subject of the interception may then challenge the lawfulness of this interception in an administrative court, and he or she may claim damages in a civil court if prejudice is proved.

In addition, the German Basic Law protects the secrecy of all communication by email, post, and telephone. The Court therefore had to decide whether interference would be justified under Article 8(2) of the ECHR as being ‘in accordance with the law’ and necessary in a democratic society ‘in the interests of national security … or for the prevention of disorder or crime’. While the Court acknowledged the need for legislation to protect these interests, it held that the question was not the need for such provisions, but whether they contained sufficient safeguards against abuse.

The applicants contended that the legislation violated Article 8 of the ECHR because it lacked a requirement that the subject of the interception be ‘invariably’ notified following the termination of the surveillance. The Court held that this was not inherently incompatible with Article 8, provided that the subject was informed after the termination of the surveillance measures as soon as notification could be made without endangering the purpose of those measures.

In Malone v United Kingdom, the plaintiff, who, at his trial on a number of charges relating to the handling of stolen property, on learning that his telephone conversations had been intercepted, issued a writ against the police.

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