On 12 September 2023, seven European Court of Human Rights (‘ECtHR’) Justices unanimously concluded that the bulk interception by the United Kingdom (‘UK’) of the electronic communications of persons residing outside UK territory contravened Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (the ‘Convention’), which relates to the right to respect for private and family life.
The seminal dispute in this case related to Article 1 of the Convention and the matter of jurisdiction, as the UK accepted that a substantive breach of Article 8 would have arisen had the interception of communications occurred within its territorial jurisdiction. The ECtHR, led by President Gabriele Kucsko-Stadlmayer, found that “each of the steps which constituted an interference with the privacy of electronic communications… were carried out by the United Kingdom’s intelligence agencies acting – to the best of the Court’s knowledge – within United Kingdom territory”. The ECtHR further found that if a breach of communications privacy clearly takes place within the UK, “the resulting injury to the privacy rights of the sender and/or recipient will also take place there”.
The application lodged with the ECtHR was submitted by two non-UK resident men (a US national and an Italian national) who, following a worldwide campaign by UK-based charity Privacy International, alleged that the UK had violated their privacy and freedom of expression rights by intercepting and storing their electronic communications. The applicants initiated proceedings by reference to the UK Human Rights Act in 2015, but the Investigatory Powers Tribunal in the UK dismissed the claims for want of jurisdiction. The applicants brought to their case to the ECtHR in November 2016, alleging breaches of Article 8 and Article 10 (relating to the right to freedom of expression).
The ECtHR held that Article 8 was admissible in the circumstances and placed significant focus on the contested matter of jurisdiction. The ECtHR rejected the UK’s submission that the interference with a person’s electronic communications “could not be separated from their person and… produced effects only where they themselves were located – that is, outside the territory of the United Kingdom”. Instead, the ECtHR drew a comparison between electronic communications and physical property as protected under the Convention, stating that, as with electronic communications, “an interference with an individual’s possessions occurs where the possession is interfered with, rather than where the owner is located”. Given that the interception of the applicants’ communications occurred within the UK, the ECtHR held that “the interference with the applicants’ rights under Article 8 of the Convention took place within the United Kingdom”.
The ECtHR found that Article 10 was inadmissible in the circumstances, in part because the applicants were not carrying out a journalistic purpose and in part because “the applicants did not make any arguments under Article 10 of the Convention above and beyond those made under Article 8”.
The ECtHR, exercising its power under Article 41 of the Convention to award just satisfaction to a party injured by a violation of the Convention, awarded the applicants costs in the amount of €33,155. The ECtHR did not make an award in respect of pecuniary or non-pecuniary damage, noting that “it agree[d] with the applicants that the finding of a violation constitutes sufficient just satisfaction” in the circumstances.
Click here for the judgment in Case of Wieder and Guarnieri v The United Kingdom App Nos 64371/16 and 64407/16 (ECHR, 12 September 2023).