In a ruling published on Tuesday, the European Court of Human Rights (ECtHR) has held Britain to account for its notorious mass digital surveillance, including those affecting people outside the UK’s borders. In the case, IT security researchers Claudio Guarnieri from Amnesty International’s Security Lab in Berlin and Joshua Wieder complained to the Strasbourg court about the lack of access to legal redress mechanisms for potential violations of their rights to privacy and freedom of expression by British secret services.
The plaintiffs specifically complained that their communications were intercepted and accessed by British secret services such as GCHQ. This can be assumed either due to the British system of mass surveillance, including broad authority for state hacking, or as part of information exchange agreements with US secret services such as the NSA. The British High Court had already examined and partially restricted GCHQ espionage activities in 2021. Because Guarnieri and Wieder live outside Great Britain, the Investigatory Powers Tribunal (IPT), which is responsible for overseeing British security authorities, refused to investigate their complaints. This meant that they were denied an appropriate legal remedy and were barred from further legal action in Great Britain.
“Milestone for privacy protection”
The Strasbourg judges now emphasize in the decision (case numbers: 64371/16 and 64407/16) that “an invasion of the privacy of communication clearly occurs where it is intercepted, searched, examined and used”. The resulting encroachments on fundamental rights in relation to the sender or the recipient would also take place there. The EMGR further concluded: Since the United Kingdom spied on the complainants’ communications on its territory, it was also territorially responsible for the restrictions, particularly on the right to privacy.
The court also emphasized that in the case of mass surveillance of communications services, the effort for the plaintiffs to prove their own involvement “must not be unreasonably high.” In this country, many complaints before the Federal Constitutional Court fail on this point. In the light of its previous case law, the EMHR ultimately came to the conclusion that there was a violation of Article 8 of the European Convention on Human Rights, which guarantees the protection of privacy.
Ilia Siatitsa, legal expert at the British civil rights organization Privacy International, sees the ruling as an “important milestone for the protection of privacy and the enjoyment of human rights in the digital age.” The ever-expanding technological possibilities have enabled states to “spy far beyond their traditional borders and grant them unprecedented access to people’s information and lives.” Governments can no longer assume that digital surveillance will have no consequences or that they can evade accountability by targeting people outside their borders. The ECHR strongly emphasizes that security authorities “must be held responsible for the consequences of their actions, regardless of where they take place”.
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