UK mass surveillance programme violated human rights, European Court rules

13 Sep 2018

The European Court of Human Rights (ECHR) in Strasbourg, in the case of ‘Big Brother Watch and Others v. The United Kingdom’ ruled that the UK’s programme of mass surveillance, the so-called Tempora, revealed by whistleblower Edward Snowden, violated the right to privacy of those targeted.  Three aspects of digital surveillance were considered by the judges: bulk interception of communications, intelligence sharing, and obtaining of communications data from communications service providers. By a majority of five to two votes, the judges found that UK’s Government Communications Headquarters’ (GCHQ) bulk interception regime violated article 8 of the European Convention on Human Rights. However, the court found that the GCHQ’s regime for sharing digital intelligence with foreign governments did not violate article 8 or article 10, therefore was not illegal. This means that sharing with foreign governments did not violate either the right to a private and family life, or to free speech. The judgment also says that not enough protection was given to journalistic sources and that the bulk interception violated the right to freedom of information. The claims were brought by a coalition of 14 human rights groups, privacy organisations and journalists, which include Amnesty International, Liberty, Privacy International, and Big Brother Watch, among others, upon the revelations made by Snowden in 2013, which showed GCHQ’s programme Tempora secretly intercepting, processing, and storing data about millions of people’s private communications, even those who were of no intelligence interest. The judgment cites: ‘The United Kingdom authorities have neither confirmed nor denied the existence of an operation codenamed Tempora.’ The director of the Big Brother Watch, Silkie Carlo, stated: ‘This landmark judgment confirming that the UK’s mass spying breached fundamental rights vindicates Mr Snowden’s courageous whistleblowing and the tireless work of Big Brother Watch and others in our pursuit for justice. This judgment is a vital step towards protecting millions of law-abiding citizens from unjustified intrusion. However, since the new Investigatory Powers Act arguably poses an ever greater threat to civil liberties, our work is far from over.’

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Privacy and data protection are two interrelated Internet governance issues. Data protection is a legal mechanism that ensures privacy. Privacy is usually defined as the right of any citizen to control their own personal information and to decide about it (to disclose information or not). Privacy is a fundamental human right. It is recognised in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and in many other international and regional human rights conventions. The July 2015 appointment of the first UN Special Rapporteur on the Right to Privacy in the Digital Age reflects the rising importance of privacy in global digital policy, and the recognition of the need to address privacy rights issues the the global, as well as national levels.

The human rights basket includes online aspects of freedom of expression, privacy and data protection, rights of people with disabilities and women’s rights online. Yet, other human rights come into place in the realm of digital policy, such as children’s rights, and rights afforded to journalists and the press.

The same rights that people have offline must also be protected online is the underlying principle for human rights on the Internet, and has been firmly established by the UN General Assembly and UN Human Rights Council resolutions.

Several international instruments guarantee the right to freedom of expression. The Universal Declaration of Human Rights affirms that this right includes the freedom to hold opinion without interference and to seek, receive and impart information and ideas. The Internet, with the opportunity it offers people to express themselves, is seen as an enabler of the exercise of this particular human right. Although these freedoms are guaranteed in global instruments and in national constitutions, in some countries freedom of expression is often curtailed through online censorship or filtering mechanisms, imposed by states, often for political reasons.

 

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