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European Court of Human Rights Says Britain’s and Sweden’s Intelligence Programs Violate Human Rights

Publications / May 31, 2021

Article written by Haim Ravia and Dotan Hammer

The Grand Chamber of Europe’s High Court for Human Rights has found that the UK’s regime for bulk interception of telecommunications under the UK’s Regulation of Investigatory Powers Act violates the European Convention on Human Rights due to its disproportionate violation of citizen’s private life in a way that exceeds what is necessary in a democratic society.

The court held that while bulk interception of telecommunication for intelligence purposes is not unconstitutional per se, such regime needs to be subject to checks and balances at each stage. This means that bulk interception needs to be subject to independent authorization at the outset, a continuous assessment of the necessity and proportionality of the measures taken, and supervision and independent review after the fact.

In particular, the Court identified several deficiencies in the UK’s bulk interception regime, including the absence of independent authorization for bulk interception warrant; the failure to include the search terms in the application for warrants; failure to ensure that search terms tied to individuals are subject to prior internal approval; the absence of a requirement that the use of search terms known to be connected to a journalist be subject to prior judicial review; and the absence of safeguards preventing analysis of intercepted material found to contain confidential journalistic material. However, the court affirmed the UK’s regime for receiving intelligence from foreign agencies. It found that it complies with the provisions of the European Convention on Human Rights.

The Grand Chamber of Europe’s High Court for Human Rights also held that although Sweden’s Signals Intelligence Act mostly complies with the provisions of the European Convention on Human Rights, it nevertheless violates the Convention to a limited extent due to the lack of certain safeguards against arbitrariness and abuse.

In particular, the Court identified three deficiencies in Sweden’s bulk interception regime: the absence of supervision and independent review of interceptions after the fact; the absence of a clear rule on destroying intercepted material that did not contain personal data; and the absence of a statutory requirement to consider the privacy interests of individuals before deciding to transmit intelligence material to foreign countries.

CLICK HERE to read the judgment of the European Court of Human Rights in Big Brother Watch and Others v. The United Kingdom.

CLICK HERE to read the judgment of the European Court of Human Rights in Centrum för rättvisa v. Sweden.

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