Chapter 4: The right to privacy and legislative authorisation of the monitoring and interception of e-mail communications in other countries
4.4. The European Commission
own limitation in terms of article 8(2). Therefore, like most jurisdictions, the right to privacy in the United Kingdom is not absolute and can be limited. The Regulation of Investigatory Powers Act (RIPA) forms such a limitation to the right to privacy of communications.
the object of the relevant law is to place restrictions on the conduct of individuals. In particular, the requirement of foreseeability cannot mean that an individual should be enabled to foresee when the authorities are likely to intercept his communications so that he can adapt his conduct accordingly.
Nevertheless, the law must be sufficiently clear in its terms to give citizens an adequate indication as to the circumstances in which and the conditions on which public authorities are empowered to resort to this secret and potentially dangerous interference with the right to respect for private life and correspondence.,,375
The court therefore held that there had been a breach of article 8 because English law did not satisfy the qualitative test necessary to meet the requirement that any interference with the right of privacy must be "in accordance with the law".376
The court looked at the process known as "metering". This process involved the use of a device (a meter check printer) which registered the numbers dialled on a particular telephone and the time and duration of each call. The release of metering information to the police without the consent of the subscriber amounted to an interference with Article 8 of the Convention.377
In Chappell v United Kingdom378 the applicant's complaint concerned the execution of an Anton Piller order made by the High Court against him for breach of copyright, requiring him to permit the plaintiffs to search his business premises (which were also his home) for and remove specified films and documents. The order was executed simultaneously with a police search warrant. The court unanimously held that there had been no breach of Article 8 of the Convention.
The court held that there had been interference with the exercise of the applicant's right to respect for his 'private life' and his 'home', which had the legitimate aim of protecting 'the rights of others'. These points had not been contested by the parties.379
375Ma/one 67.
376Ibid 80 and 87.
377Ibid 84.
378 12 E. H. R. R. 1.
379Chappe1l51.
There had been a sufficient legal basis for the interference, since 'law' under Article 8(2) included unwritten or common law.38o It had not been established that the grant and the exercise of the order did not comply with English law. The court's power of review in this respect was limited, it being in the first place for the national courts to interpret and apply that law.381
The grant of the order, was undoubtedly necessary, having regard to the nature and scope of the applicant's business?82 Moreover, the order itself incorporated significant limitations on its scope, the plaintiffs had given a series of undertakings and a series of remedies for improper exercise were available to the applicant. The court did not find any problem in the fact that the implementation of the order was left to the plaintiffs solicitors.383
InAmann v SWirtzerlancf84, the European Court of Human Rights stated that "tapping and other forms of interception of telephone conversations constitute a serious interference with private life and correspondence and must accordingly be based on
"law" that is particularly precise. It is essential to have clear, detailed rules on the subject, especially as the technology available for use is continually becoming more sophisticated.
In this case, the police had intercepted a telephone call between the applicant and a woman from the former Soviet embassy. The applicant was a business man who imported depilatory appliances into Switzerland. The woman wanted to order a
"Perma Tweez" depilatory appliance. This telephone call was intercepted in terms of the Federal Criminal Procedure Act385
which empowered the police service to intercept and monitor communications in order to prevent acts liable to endanger the Confederation's internal or external security. The reason for the monitoring was that as he had contacts with an employee of the Soviet embassy and it was not immediately clear that the "Perma Tweez" appliance which he had sold was a
380Ibid 52.
381 Ibid 54.
382Ibid 59.
383Ibid 60-61.
384(2000) 30 E.H.R.R. 843.
385Act of 1934 (RS 312.0).
harmless depilatory instrument, the authorities had to investigate his identity, his circumstances and the "Perma Tweez" appliance in question and the record the result.
There were two issues to be decided by the European Commission:
(a) whether there has been a violation of Article 8 of the Convention;
(b) whether there has been a violation of Article 13 of the Convention.386
The Commission concluded, by nine votes to eight, that there had been a violation of Article 8.387 The Commission held that that the monitoring of the applicant's telephone conversation and the storage of the information obtained therefrom violated his right to respect for his private life, and that he had no domestic remedy at his disposal to complain thereof.388 It was held that the existence of an interference cannot depend upon the applicant having suffered any identifiable damage, as such a requirement would render the Convention guarantees in Article 8 of the Convention theoretical and illusory, whereas they are intended to be practical and effective.389 After deciding that there was a violation of the right to privacy in terms of the Convention, the Commission held that it then had to establish whether this violation was justifiable in terms of article 8(2) of the Convention.39o It was held that the expression "in accordance with the law" in paragraph 2 of Article 8 of the Convention requires that the interferences must have some basis in domestic law. Moreover, the law in question must be accessible to the individual concerned and its consequences for him must also be foreseeable. In the context of secret measures of surveillance or interception of communications by public authorities, the expression "in accordance with the law" not only necessitates compliance with the law, but also relates to the quality of that law, requiring it to be compatible with the rule of law. Thus, the domestic law must be sufficiently clear in its terms to give citizens an adequate indication as to the circumstances and conditions on which public authorities are empowered to resort to any such secret measures.391 At paragraph 69, it was held that
"the storing by a public authority of data relating to the private life of an individual
386This section deals with administrative action and is therefore not relevant for the purposes of this work.
387Amann 40.
388Ibid 44.
389Ibid 55.
390Ibid 56.
391 Ibid 57-58.
amounts to an interference within the meaning of article 8. The subsequent use of the stored information has no bearing on that finding ..."