Partner Bambos Tsiattalou examines in The Times the recent European Court of Human Rights ruling in relation to GCHQ’s data interception practices.

A version of Bambos’s article was published in The Times, 10 June 2021, and can be found here.

The case was complex, but the recent landmark decision was not: 17 judges of the grand chamber of the European Court of Human Rights (ECHR) unanimously decided that GCHQ’s bulk interception regime, and its obtaining communications data from service providers, had violated the rights to a private life and freedom of expression. In future, GCHQ must get judicial approval before carrying out mass surveillance.

At stake is the protection of personal data and the privacy of British citizens.

The legal challenge, brought by activist groups, stretches back to pre-2013 when GCHQ undertook bulk interception of internet traffic via fibre-optic cables. After some of this hacked data was subsequently shared with the US National Security Agency, many thousands of UK intelligence files became part of Edward Snowden’s whistleblowing leaks.

These revealed the true extent of intelligence gathering by Britain’s spy agencies. Far beyond targeted surveillance, this involved the interception, processing and storage of data from millions of private communications.

The ECHR decision strikes a vital symbolic blow against the might of the UK state’s spying apparatus and in favour of both the privacy of the individual and media confidentiality. The latter applies because the judges also found that the UK’s bulk interception regime breached the right to freedom of expression and contained insufficient protection for confidential journalistic material.

However, the law has changed since the period under consideration by the judges, because of the introduction of the Investigatory Powers Act 2016. They made it clear that their findings only applied to practices at the time the legal challenges were launched in 2013 and not since the 2016 Act was introduced.

Nevertheless, this critical decision also has the potential to undermine the UK government’s current bulk surveillance powers. The judges cautioned that mass surveillance exerted the “pressure to conform… making individuals submissive and deferential”.

Three judges also quoted a passage from George Orwell’s Nineteen Eighty-Four: “There was of course no way of knowing whether you were being watched at any given moment… you have to live – did live, from habit that became instinct – in the assumption that every sound you made was overheard, and, except in darkness, every movement scrutinised.”

A UK government spokesman said: “The UK has one of the most robust and transparent oversight regimes for the protection of personal data and privacy anywhere in the world.” He added: “The 2016 Investigatory Powers Act has already replaced large parts of the 2000 Regulation of Investigatory Powers Act (RIPA) that was the subject of this challenge. We note today’s judgment.”

A marker has been put down: use of The Investigatory Powers Act is now on the watchlist. There is also legal room for manoeuvre to potentially challenge the current legislation.

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