A Tale of Two Organs: Hate Speech Regulation in the European Context

Clotilde Pégorier, Lecturer in Law, University of Essex

The issue of hate speech regulation has again moved in recent years to the forefront of legal and political debate in Europe. To note that questions in this area are complex, and often generate diverging opinions as to the appropriate balance between legislation and the protection of rights, is no novelty. What is striking, however, is the marked difference in the tendencies of those “natural born twins” (Gabriel Toggenburg), the EU and the Council of Europe, in their respective approaches to hate speech. How might this be explained? And what, crucially, might be the wider legislative implications at European level?

The EU and the Fight Against Online Hate Speech

First, let us consider the EU’s efforts in this context, which might here be exemplified in relation to the battle against online hate speech. In response to the problem and threat of terrorism and radicalisation, and prompted in particular by the attack in Brussels on 22 March 2016, the EU decided to intensify its work on fighting hate speech – a campaign upon which they had embarked some eight years earlier with the adoption of the Council Framework Decision 2008/913/JHA on combating certain forms and expressions of racism and xenophobia by means of criminal law. As part of its security agenda for the period 2015-2020, the Commission presented, on 14 June 2016, a communication outlining action in seven specific areas where cooperation at EU level could effectively support Member States in preventing and countering radicalisation. Alert to the ever greater role played by the internet in the dissemination of views and ideologies, the European Commission took the step of consulting IT companies with the intention of creating legislation designed to inhibit the online spread of illegal content inciting violence.

In pursuing such an initiative, the Commission was, in fact, expanding upon longer-standing awareness of the importance of preventing the spread of hate speech via media forms. As Advocate General Yves Bot concluded in his Opinion from 5 May 2011 with respect to the cases C-244/10 and C-245/10:

Member states are to ensure that television broadcasts do not contain any incitement to hatred on grounds of race, sex, religion or nationality, must be interpreted as also prohibiting broadcasts which, in attempting to justify a group classify as a ‘terrorist’ organisation by the European Union, may create reactions of animosity or rejection between communities of different ethnic or cultural origin (para 93).

In May 2016, the European Commission had, moreover, already signed an online Code of Conduct on countering illegal hate speech online with four of the biggest internet companies – namely, Twitter, Facebook, YouTube and Microsoft. The code is not legally binding yet would appear to indicate a willingness on the part of the named IT companies to support the EU’s drive to prevent online hate – a willingness that owes in some measure, no doubt, to the protections supplied by Articles 12 to 14 of the e-Commerce Directive of 8 June 2000, commonly known as the ‘safe harbour’ provisions. According to Article 12, the provider of a service cannot be held liable for any information it transmits – including hate speech – as long as it: (a) does not initiate the transmission; (b) does not select the receiver of the transmission; and (c) does not select or modify the information contained in the transmission. Article 14 limits the liability of providers of “information society services” still further when such services consist only of the “storage of information” provided by a recipient of the services. This provision only applies where the provider does not control or have knowledge of the illegal activity or information; or having gained knowledge or awareness of such illegal activity expeditiously removes or disables the links to the activity.

However we speculate on the primary motives of the IT companies, of prime significance is that they are assisting the EU in its fight against online hate speech. The Code encourages social media companies to take quick action as soon as a valid notification of online hate speech has been received, e.g. by removing or disabling access. It also underlines that, in order to combat the spread of illegal hate speech, “it is essential to ensure that relevant national laws transposing the Council Framework Decision 2008/913/JHA are fully enforced by Member States in the online as well as the in the offline environment.” With the adoption of the Council Framework Decision, the EU considered that Member states were permitted to enact criminal sanctions against anyone:

publicly condoning, denying or grossly trivialising crimes of genocide, crimes against humanity and war crimes as defined in Articles 6, 7 and 8 of the Statute of the International Criminal Court, directed against a group of persons or a member of such a group defined by reference to race, colour, religion, descent or national or ethnic origin when the conduct is carried out in a manner likely to incite to violence or hatred against such a group or a member of such a group.

Reading such provisions takes us to the heart of one of the key dilemmas at the core of current debates on hate speech – namely, the definition and understanding of the concept itself. A brief excursus on this point seems warranted here. For the question of definition remains somewhat thorny – hate speech is a term that is, at once, both over- and underdetermined. As Anne Weber puts it in her Manual on Hate Speech for the Council of Europe in 2009:

No universally accepted definition of the term “hate speech” exists, despite its frequent usage. Though most States have adopted legislation banning expressions amounting to “hate speech”, definitions differ slightly when determining what is being banned.

This is undeniably true. Yet there are international and national sources that provide useful guidance. The Council of Europe’s Committee of Ministers’ Recommendation 97(20) on “Hate Speech” defined it as follows:

[T]he term “hate speech” shall be understood as covering all forms of expression which spread, incite, promote or justify racial hatred, xenophobia, anti-Semitism or other forms of hatred based on intolerance, including: intolerance expressed by aggressive nationalism and ethnocentrism, discrimination and hostility against minorities, migrants and people of immigrant origin.

Also relevant here are the provisions of Art. 20, para. 2 of the International Covenant on Civil and Political Rights (ICPPR) of 1966, which stipulate that “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.” An authoritative interpretation of Art. 20, para. 2 is supplied by General Comment No. 34 by the Human Rights Committee, which reads:

What distinguishes the acts addressed in article 20 from other acts that may also be subject to limitations, is that for the acts addressed in article 20, the Covenant indicates the specific response required from the State: their prohibition by law. It is only to this extent that article 20 may be considered as lex specialis with regard to article 19 [which establishes other limitations on freedom of expression]. The acts referred to in article 20, paragraph 2, must cumulatively (a) advocate, (b) be for purposes of national, racial or religious hatred, and, (c) constitute incitement to discrimination, hostility or violence. By “advocacy” is meant public forms of expression that are intended to elicit action or response. By “hatred” is meant intense emotions of opprobrium, enmity and detestation towards a target group. “Incitement” refers to the need for the advocacy to be likely to trigger imminent acts of discrimination, hostility or violence. It would be sufficient that the incitement relate to any one of the three outcomes: discrimination, hostility or violence (para. 51).

This interpretation provides perhaps the fullest, and most useful, elucidation of hate speech – one that does most to capture its particular power to harm. Read in conjunction with modern understandings of the potential of online media to contribute to the dissemination of political views, and to generate and spread ‘hatred’, it casts particularly sharp light, moreover, on how, by enlisting the support of IT companies, the EU is taking a progressive – and legitimate – stand in trying to confront modern hate speech in one of its most threatening forms. 

The Council of Europe: The Protection of Freedom of Expression Over the Fight against (Online) Hate Speech?

The situation is somewhat different, however, in the case of the other main European organ, the Council of Europe, which appears to be taking a much more cautious approach. A latest manifestation of this has been in the Perinçek case, for instance, where the European Court of Human Rights (ECtHR) decided, on 15 October 2015, that Switzerland’s criminalisation of Doğu Perinçek for genocide denial constituted a violation of Article 10 of the European Convention on Human Rights (ECHR). The Court finding here was that the restriction on freedom of expression imposed by the Swiss authorities was not proportionate.

This is but the latest sign of a divergence in the attitudes and response from two European organs to the issue of hate speech, reflecting a breach within Europe with regards to the status of hate speech in relation to freedom of expression, the latter itself a fundamental notion of both the ECHR and the Charter of Fundamental Rights of the European Union (Article 11).

The prevention and prohibition of online hate speech has been on the agenda of the Council of Europe since at least 2001, when the Convention on Cybercrime was adopted. In 2003, an Additional Protocol concerning the criminalisation of acts of a racist and xenophobic nature committed through computer systems was adopted. According to this Additional Protocol:

1. Each Party shall adopt such legislative measures as may be necessary to establish the following conduct as criminal offences under its domestic law, when committed intentionally and without right: distributing or otherwise making available, through a computer system to the public, material which denies, grossly minimises, approves or justifies acts constituting genocide or crimes against humanity, as defined by international law and recognised as such by final and binding decisions of the International Military Tribunal, established by the London Agreement of 8 August 1945, or of any other international court established by relevant international instruments and whose jurisdiction is recognised by that Party. […]

In June 2016, however, at the same time that the EU Code of Conduct was adopted, the Council of Europe Secretary General, concerned about internet censorship, decided that rules for blocking and removing illegal content must be transparent and proportionate. This opinion came after his report on the state of democracy, human rights and the rule of law, based on a study conducted by the Swiss Institute of Comparative Law and identifying a number of shortcomings in some states,  became public.

In the report, the Secretary General clearly stated that:

In the majority of member states, the legal framework on blocking, filtering and removal of Internet content meets the requirements of being prescribed by law, pursuing legitimate aims and being necessary in a democratic society, in accordance with Article 10 of the Convention. Exceptions remain however, notably with regard to laws regulating hate speech and counter-terrorism (p. 33).

In view of this, one can understand why the Grand Chamber of ECtHR decided in the Perinçek case that the Swiss criminal provision was disproportionate and did not fulfil the criteria of being necessary in a democratic society. Yet Art. 261bis of the Swiss penal code provides that ‘any person who publicly denigrates or discriminates against another or a group of persons on the grounds of their race, ethnic origin or religion in a manner that violates human dignity, whether verbally, in writing or pictorially, by using gestures, through acts of aggression or by other means, or any person who on any of these grounds denies, trivialises or seeks justification for genocide or other crimes against humanity, […] is liable to a custodial sentence not exceeding three years or to a monetary penalty’. It is difficult to see how a criminal law could be much more transparent or clearer here. The decision to uphold Perinçek’s claim to a violation of Art. 10 ECHR certainly delivered a blow to the fight against hate speech at the EU level – as was duly noted by judges Spielmann (president of the Grand Chamber), Casadevall, Berro, De Gaetano, Sicilianos, Silvis and Kūris, in their joint dissenting opinion:

With regard to the finding that there was no obligation on Switzerland to criminalise the applicant’s statements (see paragraphs 258-68), we confess to having serious doubts as to the relevance of the reasoning. Can it not be maintained, on the contrary, that a (regional) custom is gradually emerging through the practice of States, the European Union (Framework Decision 2008/913/JHA) or ECRI (Policy Recommendation no. 7)? We would also note that beyond Europe, the United Nations Committee on the Elimination of Racial Discrimination has repeatedly recommended criminalising negationist discourse. Can all these developments be disregarded at a stroke by examining the case in terms of an alleged conflict of obligations? (para 10)

It thus seems that the Council of Europe is taking a retrogressive step in the fight against hate speech – both offline and online – as the laws in place regulating hate speech do not appear to be in line with the ECHR. The approach of the Council also lies in opposition to that being taken by the EU, rendering the position of EU members difficult: should they criminalise online hate speech, or should they rather grant greater weight to Art. 10 ECHR? Indeed, what if Switzerland was an EU member? By criminalising genocide denial as a form of hate speech liable to incite violence, as it initially did in the Perinçek case, Switzerland complied with the Framework Council decision. In so doing, however, it contravened Art. 10 of the ECHR and was thus found guilty of a violation by the ECtHR.

Conclusion

The question of how to square the protection of freedom of expression with the imposition of criminal sanctions for hate speech is, doubtless, one which is difficult. Yet wherever one draws the line between acceptable and unacceptable limits on freedom of expression, it seems apparent that, at the European level, the EU and the Council of Europe should be working together much more coherently in attempting to confront the issue of online (and offline) hate speech.  

To this end, the Council of Europe should liaise more closely with the EU – not least as the Secretary General, in his 2016 report, commented that:

-In addition to calling on member states to implement in full the recommendations in this report, I urge them to make clear their commitment to the European Convention on Human Rights and the Strasbourg Court. Our Convention system can never be taken for granted: it depends on the active and constructive engagement of all governments. By embedding these fundamental freedoms into the legal, political and social fabric of their nations, Europe’s leaders can build democracies which are more open and inclusive and, as a result, more secure (p.5)

In order to facilitate a more consistent approach across Europe, it seems clear that the European Court of Human Rights itself has to be prepared to allow for greater restrictions to be placed on freedom of expression, precisely as noted by the judges in their dissenting opinion in the Perinçek case. As long as the Strasbourg Court continues to permit freedom of expression to be used as a catch-all defence, it will remain extremely difficult to combat online hate speech and to develop a common European standard. Two measures thus seem necessary. Firstly, a common understanding of what hate speech is and entails should be striven for – the interpretation supplied by General Comment No. 34 by the Human Rights Committee provides useful initial orientation, not least in the manner that it explicates key notions of ‘incitement’ and ‘hatred’, and in the way that it outlines the possible effects of hate speech beyond physical violence. Secondly, there needs to be common agreement on the way in which such forms threaten democratic values – how they violate ‘the respect of the rights or reputations of others’ and may imperil ‘national security’, ‘public order’, or ‘public health or morals’, and thus constitute a legitimate restriction on freedom of expression provisions.

Barnard & Peers: chapter 9

JHA4: chapter II:6

Photo credit: European Centre for Press and Media Freedom

When can EU citizens be expelled from the UK after Brexit? The Human Rights Dimension

Matthew White, Ph.D candidate, Sheffield Hallam University

Following the EU referendums result to leave, David Cameron announced his resignation without invoking Article 50 of the Treaty of European Union. Already highlighted by Professor Steve Peers that the biggest issue in human terms, is what happens to EU citizens in the UK, and UK citizens in the EU. Peers advocated for an EU/UK withdrawal treaty that would contain a specific clause which would be legally binding, that defined the exact scope of the rule, which could also be supplemented by further measures, and must be fully applied in national law.

Prime Minister, Theresa May, according to the Guardian, had previously stated that ‘the rights of EU migrants to remain in the UK will be in play in the talks’ which Patrick Wintour interpreted as ‘without a deal, tens of thousands of Europeans could be thrown out of the UK.’ May’s position on the matter has not shifted, and even gained more weight when Phillip Hammond, according to the Spectator on the Today programme uttered:

Well look, I think we need to have a comprehensive negotiation with our EU partners, including around freedom to move, freedom to work, freedom to study and freedom to settle. And I hope we will be able to get to a position where are able to say to those EU nationals who live in the UK, and to those Brits who live in EU countries: everything’s fine, you can stay as you were. But we cant assume that. We’ve got to negotiate that with our former EU partners…. It would be absurd to make a unilateral commitment about EU nationals living in the UK without at the very least getting a similar commitment from the EU about British nationals living in the EU.

The concerns about this possibility have been exacerbated by today's suggestions from the Prime Minister that EU doctors will be expelled in future. It is accepted that this would be a worst case scenario, but if such a drastic measure of deportation of EU citizens en masse were to occur, what would be the legal consequences of such expulsion?

Article 8:

Assuming that the UK does withdraw from the EU and (as recently announced) repeal the European Communities Act 1972 (ECA 72) and the rights and obligations that come with it, EU citizens would more likely than not have to rely on the European Convention on Human Rights (ECHR). PM May had previously insisted that the UK should withdraw from the ECHR but has since retracted, and the new Home Secretary, Liz Truss seeks to replace the Human Rights Act 1998 (HRA 98) with a British Bill of Rights. This has been regarded by Conor Gearty as a bad idea and in any event would not affect the right of petition to Strasbourg, although it would make it more difficult to enforce ECHR rights in UK courts.

In relation to the context of this post, the principal right in question is Article 8, which stipulates that:

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

An EU citizen would first have to establish that Article 8, i.e. their private, family life, home etc was (or would be) engaged by the interference of (pending) deportation/removal. If this is established, it is then for the state to justify why this is legal, necessary and proportionate on the basis of national security public safety etc. In Chapman v UK (Application no. 27238/95) the European Court of Human Rights (ECtHR) considered the question of the removal of the applicants from their home, who had established it unlawfully. The ECtHR noted that whether the homes were established lawfully or unlawfully was highly relevant to the proportionality of the requirement to leave it. They continued, if the home was established lawfully ‘this factor would self-evidently be something which would weigh against the legitimacy of requiring the individual to move’ (para 102). This would pose an obstacle to any plans to remove EU citizens who had lawfully established their home in the UK. The ECtHR also noted that less weight would be attached to those that had established their home unlawfully (para 102) meaning that it would still be relevant, but to a lesser degree.

In Moustaquim v. Belgium (Application no. 12313/86) the ECtHR maintained that separation of a Moroccan national from his family (parents and siblings, three of whom were born there (para 9) for more than five years by the Belgian authorities interfered with Article 8 (para 36). An important principle of this case despite the ECtHR finding a violation of Article 8 (para 46) (and despite the applicant committing 147 offences as a minor (para18)) was that the ECtHR recognised that states had ‘as a matter of well established international law and subject to their treaty obligations, the right to control the entry, residence and expulsion of aliens’ (para 43). Though this case does not specifically deal with EU citizens who have committed an offence, it does highlight that even committing one does not mean deportation is necessary.

Article 8 also places certain obligations on states to keep families together, which can be ‘positive’ (actively doing something) and ‘negative’ (refraining from doing something). In Gul v Switzerland (Application no. 23218/94), a Kurdish asylum seeker, his wife and child who resided in Switzerland wanted to be reunited with a child that stayed behind in Turkey. The ECtHR held that because there were no obstacles in preventing family life in Turkey, Switzerland had not failed to fulfil its obligations under Article 8 (para 42-43). This highlights the difficulties EU citizens would face if they had relatives in another country whom they wanted to be reunited with in the UK. 

The ECtHR, did however, distinguish this from Berrehab v Netherlands (Application no. 10730/84) which concerned a Moroccan national who wanted to keep in contact with his Dutch-born child after a divorce with his Dutch-born wife. The ECtHR established that by the very fact of the child’s birth, ‘family life’ had been established irrespective of whether the parents were living together (para 21). The ECtHR were also quick to dismiss claims that ties were broken between Mr. Berrehab and his daughter because he had visited her four times a week for several hours at a time (para 21). 

The ECtHR then considered whether the refusal of an independent residence permit was necessary in a democratic society, it was noted that Mr. Berrehab was not seeking admission into the Netherlands for the first time, but was a person who had already lawfully lived there for several years, who had a home and a job there, and against whom the Government did not claim to have any complaint. The ECtHR further noted that Mr. Berrehab already had real family ties there - he had married a Dutch woman, and a child had been born of the marriage (para 29). Regarding the relationship with the child, the ECtHR noted that Mr. Berrehab had been close with his daughter for several years, expulsion would threaten this which heightened the degree of seriousness because of the need of Mr. Berrehab daughter to keep in contact with him, given her young age (para 29). On these facts, the ECtHR found the Netherlands to be in violation of Article 8. This demonstrates that individual circumstances of each EU citizen would be key in determining whether or not they should be removed, this intensifies when children are involved, and more so if they are very young.

In Slivenko and others v Latvia - 48321/99 [2003] ECHR 498 a case regarding removal, the ECtHR highlighted that:

They were thus removed from the country where they had developed, uninterruptedly since birth, the network of personal, social and economic relations that make up the private life of every human being. Furthermore, as a result of the removal, the applicants lost the flat in which they had lived in Riga...In these circumstances, the Court cannot but find that the applicants' removal from Latvia constituted an interference with their “private life” and their “home” (para 96).

The ECtHR found a violation in this case (para 129), but the importance of this is that it would be more difficult for the UK to remove EU citizens who have made a life for themselves within the UK.

A further point about EU citizens that work in the UK would be what the ECtHR stated in Niemietz v Germany (Application no. 13710/88) ‘[r]espect for private life must also comprise to a certain degree the right to establish and develop relationships with other human beings.’ The ECtHR went further by adding that ‘"private life" should be taken to exclude activities of a professional or business nature since it is, after all, in the course of their working lives that the majority of people have a significant, if not the greatest, opportunity of developing relationships with the outside world’ (para 29).

On a domestic level, in the case of UE (Nigeria) & Ors v Secretary of state for the Home department [2010] EWCA Civ 975 the Court of Appeal were tasked with determining the question of:

When the decision-maker is carrying out the balancing exercise required to determine whether removal is proportionate in an Article 8 case, is it relevant on any basis that the person in question is of value to the community in the United Kingdom, a value of which that community would be deprived if he were to be removed? (para 8).

Sir David Keane considered both ECtHR and domestic jurisprudence noting how both make references to the striking a fair balance between the individual and the general interests of the community (paras 13-17). In considering that courts should not be too restrictive in determining what is relevant to immigration controls, Sir David Keane noted that:

[A] a public interest in the retention in this country of someone who is of considerable value to the community can properly be seen as relevant to the exercise of immigration control. It goes to the weight to be attached to that side of the scales in the proportionality exercise. The weight to be attached to the public interest in removal of the person in question is not some fixed immutable amount. It may vary from case to case, and where someone is of great value to the community in this country, there exists a factor which reduces the importance of maintaining firm immigration control in his individual case. The weight to be given to that aim is correspondingly less. (para18).

When referring to Bakhtaur Singh v. Immigration Appeal Tribunal [1986] UKHL 11 where as Sir David Keane made note, the House of Lords unanimously held that when deportation was being considered under the Immigration Act 1971 and the Immigration Rules, both the Secretary of State and appellate bodies had to include amongst the relevant circumstances, the value to the community in the United Kingdom of the individual in question. This was to ensure a balance in "the public interest" against any compassionate circumstances of the case (para 21). Sir David Keane also referred to Lord Bridge (page 917 C-E) who noted a few examples of such value, ranging from an essential worker in a company engaged in a successful export business or a social worker upon whom a local community depended or a scientific research worker engaged on research of public importance (para 21). Sir David Keane admitted these cases were not Article 8 cases (and was ruled before the Human Rights Act 1998  came into force (para 21)) but that it would be surprising if the balancing exercise required by Article 8 was narrower than a statutory discretion. This was so, particularly in the context of the ‘public interest’ element of immigration control (para 22), therefore concluded that value to the community is relevant to the assessment to an extent of the public interest in removal (para 24 and 35) and the examples given by Lord Bridge were not exhaustive (para 36). Ultimately, the appeal was allowed and remitted back to the Upper Tribunal to consider the matters discussed.

This issue was further addressed in Zermani, R (On the Application Of) v Secretary of State for the Home Department [2015] EWHC 1226. Here, the claimant despite overstaying and creating forged passports (and was sent to prison for said offence) relied on his contribution to the community to prevent his removal or at least proper consideration of his contribution. The claimant relied on letters affirming his value and character from groups including the local Council, Bangor University, the local Mosque, the Welsh Refugee Council, a refugee support group, and the Police (paras 4-14). HHJ Worster was referred to three cases decided by the Outer House in Scotland, dealing with this matter. The first, SM v SSHD [2012] CSOH 172 concerned a sound technician, who relied upon the accumulation of private life, despite unlawfully overstaying. The claimant’s application was supported by 14 letters of support describing his contribution (para 12). However, Lord Stewart noted although relevant, this would not have changed the decision made, referring to Lord Bridge’s examples with an emphasis the lawfulness of businesses and employment (para 17). The second and third cases, David Ndagijimana v SSHD [2014] CSOH 14 and MK v SSHD [2015] CSOH 13 respectively, both dealt with claimants who had overstayed, and in both the public interest in removal outweighed their contribution to the community. However, in Zermani, HHJ Worster was of the opinion that the supplementary decision did not fully take into account (paras 46-49) of the applicants ‘quite out of the ordinary’ (paras 35 and 49) contribution to the community and thus quashed the decision. These lines of cases demonstrate that if EU citizens can demonstrate their value to the community, this would add another hurdle to any prospects of removal.   

Even when removal is based on national security grounds, the ECtHR may find violations if the legal underpinning for such measures are insufficient. In Aristimuño Mendizabal v France (Application no. 51431/99) (in French) the applicant, a Spanish national complained of the temporary residence permits, whose duration varied from a few weeks to a year, over a 14 year period. The applicant highlighted the precarious situation they were put under, unable to obtain a stable job, long-term employment, poverty and significant social problems (para 60-61). The ECtHR highlighted that while the ECHR does not guarantee ‘the right of a person to enter or reside in a State of which he is not a citizen or not be expelled’ (para 65) or ‘guarantee to the person the right to a particular type of residence permit (permanent, temporary or otherwise) provided that the solution proposed by the authorities enables it to exercise unfettered rights to respect for [Article 8]’ (para 66). However, because the applicant was an EU citizen, the ECtHR decided that Article 8 should be ‘interpreted in the light of Community law and in particular the obligations of Member States regarding the entry and residence rights of EU citizens’ (para 69). The ECtHR felt that the precarious situation of the applicant amounted to an interference with Article 8 (para 72). After consider EU law (para 74-78). Ultimately concluding that ‘the period of over fourteen years taken by the French authorities to issue a residence permit to the applicant was not provided by law, the "law" in question is French or Community, and that there has been a violation of Article 8’ (para 79). This is an important consideration given that the UK may remain party to the EEA which would involve free movement of some form whilst also highlighting the issue of leaving EU citizens in a state of uncertainty.

Supplementing Article 8:

The above does not consider every aspect of Article 8 in the immigration context, but it is suggested that Article 4 of Protocol 4 (A4P4) of the ECHR can supplement Article 8. A4P4 stipulates that:

‘Collective expulsion of aliens is prohibited.’

First and foremost, however, it must be noted that the UK, has not, to date, ratified A4P4 nor is it incorporated into UK law through the Human Rights Act 1998. This means that it cannot be enforced through UK courts and neither does the ECtHR have the jurisdiction to consider based on it not being ratified.

However, in Demir and Baykara v. Turkey - 34503/97 [2008] ECHR 1345 the GC, significantly highlighted that:

The Court, in defining the meaning of terms and notions in the text of the Convention, can and must take into account elements of international law other than the Convention, the interpretation of such elements by competent organs, and the practice of European States reflecting their common values. The consensus emerging from specialised international instruments and from the practice of contracting States may constitute a relevant consideration for the Court when it interprets the provisions of the Convention in specific cases.

In this context, it is not necessary for the respondent State to have ratified the entire collection of instruments that are applicable in respect of the precise subject matter of the case concerned. It will be sufficient for the Court that the relevant international instruments denote a continuous evolution in the norms and principles applied in international law or in the domestic law of the majority of member States of the Council of Europe and show, in a precise area, that there is common ground in modern societies. (para 85-86).

This ‘continuous evolution in the norms and principles applied in international law’ can ben expressed by Judge Pinto De Albuquerque in his concurring opinion in Hirsi Jamaa that:

The prohibition of collective expulsion of aliens is foreseen in Article 4 of Protocol No. 4 to the European Convention on Human Rights, Article 19 (1) of the Charter of Fundamental Rights of the European Union, Article 12 (5) of the African Charter on Human and People’s Rights, Article 22 (9) of the American Convention on Human Rights, Article 26 (2) of the Arab Charter on Human Rights, Article 25 (4) of the Commonwealth of Independent States Convention on Human Rights and Fundamental Freedoms and Article 22 (1) of the International Convention on the Protection of the Rights of All Migrants Workers and Members of Their Families. (see also OHCHR Discussion paper: Expulsions of aliens in international human rights law, September 2006 (page 15-16)).

Therefore, these bodies of international law establish a prohibition of collective expulsion. The question then becomes, how does one enforce a Protocol that has not been ratified and cannot be used in domestic courts? In short, you do not. What one can do is apply it to a right that can be enforced whether by the ECtHR or domestic courts. Judge Ziemele in his concurring opinion in Lalmahomed v Netherlands - 26036/08 [2011] ECHR 338 discussed the passage from Demir and Baykara noted that:

However, if we were to follow the literal meaning of what the Grand Chamber said, it might suggest that in our case, even though the Netherlands has not ratified Protocol No. 7, since it does provide for a leave-to-appeal system of sorts the Chamber should have assessed whether the leave-to-appeal system as such complied with Article 6. After all, the applicant did complain that the domestic law governing this procedure was contrary to the Convention.

It is therefore suggest that on this basis, collective expulsion constitutes an inherent element (para 147-155) of the right to respect of private, family life and home. This is so because in the removal or prevention of entry context, the state has to take into account individual circumstances before making a decision, not respecting this opens them up to challenge. This could in turn supplement the Article 8 rights of those EU citizens who may be removed on an arbitrary basis.

It is therefore important to consider some cases concerning A4P4. In the case of Čonka v. Belgium (Application no. 51564/99) Slovakian nationals of Romany origin, described how they had fled from Slovakia because they had been subjected to racist assaults, with the police refusing to intervene. They had been arrested with a view to their expulsion after they had been summoned to complete their asylum requests. The applicants complained, about the circumstances of their arrest and expulsion to Slovakia. In interpreting A4P4, the ECtHR maintained that ‘collective expulsion’ is understood to be any measure compelling aliens, as a group, to leave a country, except where such a measure is taken on the basis of a reasonable and objective examination of the particular case of each individual alien of the group (para 59). The ECtHR highlighted that the only reference to the personal circumstances of the applicants was that their stay in Belgium had exceeded three months (para 61). The ECtHR found a violation because Belgium, at no stage demonstrated that the personal circumstances of each of those concerned had been genuinely and individually taken into account.

The principle from this is that if PM Theresa May, creates a law that would expel EU migrants on the basis of residing within the UK for less than a specified period of time (or some other ill-defined basis), could open the UK up to challenges before the ECtHR. This could be used to supplement Article 8 (as will be discussed below).

Moreover, when it comes to EU migrants wishing to enter the UK, an ill-defined law on entering could also pose problems. In the case of Hirsi Jamaa and Others v. Italy (application no. 27765/09) Somalian and Eritrean migrants travelling from Libya had been intercepted at sea by Italian authorities, then subsequently sent back to Libya. The first question before the GC was whether when Italian authorities sent the applicants back to Libya, they were within Italy’s jurisdiction for the purposes of Article 1 (securing the rights of everyone under a State’s jurisdiction). The GC felt that removal placed the applicants under the continuous and exclusive de jure and de facto control of the Italian authorities (para 81) and therefore within the ambit of Article 1 (para 82).

Prior to Hirsi Jamaa the GC noted that case law regarding A4P4 had mostly concerned removing individuals within national state territory (para 167). However, the GC took the unprecedented step of considering A4P4 applicability of expulsion outside national territory to ‘ascertain whether the transfer of the applicants to Libya constituted a “collective expulsion of aliens” within the meaning of’ A4P4 (para 169). The GC rejected the Italian government’s assertion (that A4P4 was not applicable because the applicants were not on Italian territory at the time of their transfer to Libya (para 172) because A4P4 made no reference to the notion of ‘territory’ (para 173). The GC went to some length justifying why this was the correct approach (which of course is also relevant to the ‘Syrian Refugee Crisis’) (paras 174-178), whilst also highlighting that States must establish their own immigration policies but ‘managing migratory flows cannot justify having recourse to practices which are not compatible with the State’s obligations under the Convention’ (para 179). Therefore, the GC found A4P4 applicable (para 182).

The GC reemphasised the importance of expulsion based on individual circumstance (para 183) but also highlighted that:

‘[T]he fact that a number of aliens are subject to similar decisions does not in itself lead to the conclusion that there is a collective expulsion if each person concerned has been given the opportunity to put arguments against his expulsion to the competent authorities on an individual basis.’ (para 184).

Under the circumstances of the specific case (para 185), the GC found a violation of A4P4 (para 186). This serves to demonstrate that even outside the physical territory of the UK, it must still uphold the Convention when it comes to migration.

Article 8 and collective expulsions: the procedural rights dimension

The case of Al-Nashif v Bulgaria (Application no. 50963/99) concerned the expulsion of a stateless Palestinian, Mr Al-Nashif on national security grounds. The applicants, Mr Al-Nashif and his children submitted they were entitled to the protection of Article 8 and that because of Mr Al-Nashif’s statelessness, was unable to develop strong links with any country except Bulgaria where they had established a home and family life (paras 102-103). The applicants argued that the expulsion of family member is a collective interference with their Article 8 rights, making reference to the fact that the family had never lived in Syria, and that deportation created economic and legal obstacles to the creation of a new family home in Jordan and Syria (para 103).  It was also argued that the laws in question were not in accordance with the law because they lacked clarity and foreseeability (para 104), and furthermore Mr Al-Nashif had never engaged in any unlawful or dangerous activity (para105).

The ECtHR accepted that family life existed (para 113) and that this was interfered with by the action of the Bulgarian authorities (para 114). On the issue of clarity and forseeability, the ECtHR reiterated past case law on the idea of laws being accessible and foreseeable to prevent unfettered exercise of powers by indicating the scope of discretion, with sufficient clarity, having regard to the legitimate aim of the measure in question, to give the individual adequate protection against arbitrary interference (para 119). This is so even in the context of national security, measures affecting fundamental human rights must be subject to some form of adversarial proceedings before an independent body competent to review the reasons for the decision and relevant evidence, if need be with appropriate procedural limitations on the use of classified information (para 123). The ECtHR made note that the decision to deport Mr Al-Nashif was taken without disclosing any reasons to the applicants, to their lawyer or to any independent body competent to examine the matter (para 126). The ECtHR also highlighted the legal regime was subject to challenge where the Sofia City Court and the Supreme Administrative Court in some cases refused to accept blank assertions by the executive in unreasoned decisions under the Aliens Act (para 127). The ECtHR concluded that the legal regime did not provide the necessary safeguards against arbitrariness and thus amounted to a violation of Article 8 (para 128).

This case, it is submitted necessarily rules out collective expulsion, as that was ultimately the consequences of the actions of the Bulgarian authorities. Furthermore, in line with A4P4, the decision to remove were based on objective reasonable justifications, which also were difficult to challenge. This leads into another Protocol, that the UK has not yet to date ratified, that being Protocol 7 Article 1(1) (P7A1(1)) which provides that:

An alien lawfully resident in the territory of a State shall not be expelled there from except in pursuance of a decision reached in accordance with law and shall be allowed:

a to submit reasons against his expulsion,

b to have his case reviewed, and

c to be represented for these purposes before the competent authority or a person or persons designated by that authority.

Although P7A1 can be bypassed on public order and national security grounds (P7A1(2)), Al-Nashif demonstrates the procedural requirements for Article 8 compliance. Further, given what Judge Ziemele discussed in his concurring opinion in Lalmahomed v Netherlands it may be that any such EU citizen wide removal system be compatible with Article 6 of the ECHR.

Conclusions:

In the unlikely event that a worst case scenario occurs, this post demonstrates that even if EU law rights and obligations stemming from the European Communities Act 1972 were to be curtailed, the ECHR can still be utilised to protect individuals. It is also important to highlight that, if other EU Member States created similar provisions in retaliation to the UK, the ECHR would protect UK citizens in the EU. Another layer of protection for UK citizens living in EU Member States may stem from EU immigration law concerning non-EU citizens, meaning that the Charter of Fundamental Rights (CFR) would apply and would therefore be covered by Article 7 (respect for private and family life) and Article 19 (prevention of collective expulsion). This post does not even begin to consider the other complex ECHR issues, education, discrimination, etc were such a measure to take force and it would only make removal more difficult.

Barnard & Peers: chapter 13, chapter 27

JHA4: chapter I:6

Photo credit: home.bt.com

The new Opinion on Data Retention: Does it protect the right to privacy?

Matthew White, Ph.D candidate, Sheffield Hallam University

Introduction

Has an Advocate General (AG) in the Court of Justice of the EU unleashed the power of the European Convention on Human Rights (ECHR)? On 19 July 2016, the AG gave his Opinion in the joined cases of C‑203/15 and C‑698/15 Watson and Tele2. The AG felt that general data retention obligations  imposed by Member States may be compatible with fundamental rights enshrined in EU law, provided that there are robust safeguards (para 7). This post briefly outlines the background (for a more detailed background, see Professor Lorna Woods’s take) to this case whilst highlighting aspects relating to the ECHR and that some of the AG’s conclusions become self defeating for requiring EU law to be no less stringent than the ECHR.

Background

Case C‑203/15

A day after Digital Rights Ireland (where the Court of Justice of the European Union (CJEU) ruled that the EU’s Data Retention Directive (DRD) was invalid for being incompatible with the Charter of Fundamental Rights (CFR)), the first claimant, Tele2, notified the Swedish Post and Telecommunications Authority (PTS) of its decision to cease retaining data in Chapter 6 of the LEK (the relevant Swedish law) with the aim of deleting (para 50). The National Police Board (RPS) complained to the PTS about Tele2’s actions as having serious consequences for law enforcement activities (para 51). PTS ordered Tele2 to resume retention in accordance with Chapter 6 (para 52), to which Tele2 appealed to the Stockholm Administrative Court (SAC) but lost (para 53).  Tele2 then sought to appeal against the SAC (para 54), but the Stockholm Administrative Court of Appeal (SACA) felt making a preliminary reference to the CJEU would be more appropriate where it asked:

·         Is a general obligation to retain all traffic data indiscriminately compatible with Art.15(1) of the (ePrivacy) Directive (Directive) and Articles 7, 8 and 52(1) of the CFR?

·         If no, is such an obligation nevertheless permitted  where:

§  access by national authorities was governed in a specified manner, and

§  the protection and security of data are regulated in a specified manner, and

§  all relevant data is retained for six months?

Case C‑698/15 

I previously blogged on the situation in the UK, but will make a quick summary for the purposes of this post (or alternatively see paras 56-60 of the Opinion). The UK responded to Digital Rights Ireland by introducing the Data Retention Investigatory Powers Act 2014 (DRIPA 2014). This was successfully challenged in the High Court by Tom Watson MP and David Davis MP. But the success was short lived when the Court of Appeal disagreed with the High Court, but made a preliminary reference to the CJEU asking:

·         Did the CJEU in Digital Rights Ireland intend to lay down mandatory requirements of EU law with which the national legislation of Member States must comply?

·         Did the CJEU in Digital Rights Ireland intend to expand the effect of Articles 7 and/or 8, EU Charter beyond the effect of Article 8 ECHR as established in the jurisprudence of the ECtHR?

AG’s Opinion

Asking the wrong question?

The AG initially dealt with the question regarding whether Digital Rights Ireland extended the scope of Article 7 and/or Article 8 of the CFR beyond that of Article 8 of the ECHR. The AG considered this question inadmissible (para 70 and 83) because that possibility was not directly relevant to the resolution of the current dispute (para 75). The AG admitted that the first sentence of Article 52(3) (which lays down rules of interpretation) of the CFR makes clear that any corresponding rights must be the same in meaning and scope to that of the ECHR (para 77). But highlighted, the second sentence of Article 52(3), can permit CJEU to extend the scope of the CFR beyond that of the ECHR (para 78). The ECHR has always been a minimum benchmark as in Trucl and Others v Slovenia it was noted that ‘rights guaranteed by the Convention represented minimum standards’ (para 115). Thus if the EU did acceded to the ECHR (and even if it did not), with or without the second sentence Article 52(3), the CJEU would be free to extend the scope CFR as it saw fit. Therefore in agreement with the AG, the Court of Appeal asked the wrong question.

Lack of corresponding right means rules of interpretation does not apply?

Another important aspect was  pointed out by the AG, who maintained that Article 8 of the CFR has no ECHR corresponding right and therefore the rules of interpretation laid out in the first sentence of Article 52(3) does not apply (para 79). However, there is cause for slight disagreement on this interpretation of Article 52(3). While the High Court admitted that protection of personal data fell within the ambit of Article 8 of the ECHR, they felt Article 8 of the CFR went beyond this because it was more specific and the ECHR had no counterpart (para 80). However, the High Court did so without actually considering Article 8 ECHR case law, therefore their conclusions did not appear to based on anything but mere conjecture and the wording of Article 8 CFR.  This was also questioned by Stalla-Bourdillon because it appeared the High Court followed this interpretation based on there not being an ECHR counterpart. But on closer inspection, as Stalla-Bourdillon highlighted, there is extensive Article 8 case law on the protection of personal data, which is suggested, does in fact correspond with Article 8 CFR. Therefore, both the High Court and AG has fallen prey to only considering the provisions of the ECHR and not the European Court of Human Rights’s (ECtHR) interpretation of those provisions, thus substance over form seemingly prevailed.

It is suggested because there is such extensive case law on the protection of personal data in light of Article 8 ECHR, it is only right that it should be used as a guide when considering Article 8 CFR. Article 52(3) notes that ‘the meaning and scope of those rights shall be the same as those laid down by the said Convention.’ In PPU J McB v LE the CJEU held that not only does the rights set out in ECHR are to correspond, but also the meaning given through the ECtHR’s jurisprudence (para 53) (see also). In Schecke the CJEU held that:

[T]he right to respect for private life with regard to the processing of personal data, recognised by Articles 7 and 8 of the Charter, concerns any information relating to an identified or identifiable individual...and the limitations which may lawfully be imposed on the right to the protection of personal data correspond to those tolerated in relation to Article 8 of the Convention.’(para 52). 

It has been maintained that such an interpretation can be problematic because the CJEU has allowed Article 8 CFR to be absorbed by Article 7. However, this does not and would not weaken the stance that Article 8 CFR as a standalone right should be interpreted (where possible) in accordance with principles of data protection embedded within the ECtHR’s jurisprudence. Read as a whole, Article 52(3) would therefore be properly adhered to, and would also allow the CJEU to deviate, if need be, to offer a higher standard of protection.

A general obligation to retain:

The AG then considered whether Article 15(1) of the Directive allowed Member States to impose a general data retention obligation (para 84) by establishing whether such an obligation fell within the scope of the Directive (para 86). The Czech, French, Polish and United Kingdom Governments all contended that data retention was excluded by Article 1(3) (which excludes matters such as public security, defence, State security from the scope of the Directive) (para 88). However, the AG rejected this by highlighting that:

·         Article 15(1) governed precisely that (retention of data) (para 90),

·         Provisions of access falling within Article 1(3) does not preclude retention from falling within Article 1(3) (para 92-94),

·         The approach taken by the CJEU in Ireland v Parliament and Council meant that general data obligations were not within the scope of criminal law (para 95).

When it came to the issue of whether the Directive applied the AG referred to the Member States ‘entitlement’ under Article 15(1) i.e. Member States have a choice (para 106). The AG then referred to Recital 11 of the Directive which did not alter the balance between an individual’s right to privacy and the possibility of Member States to take measures necessary for the protection of public security etc (para 107). Moreover, the AG highlighted that the Directive did not alter the ability of Member States to carry out lawful interception of electronic communications, or take other measures, if necessary for any of these purposes and in accordance with the ECHR (para 107). The AG opined that general data retention obligations were consistent with the Directive and therefore Member States were entitled to avail themselves of that possibility under Article 15(1), subject not only to its requirements, but that of the CFR in light of Digital Rights Ireland (para 116). Although the AG felt that general obligations of data retention were permissible under EU law (subject to restrictions), an avenue was created for testing the general obligations itself under the ECHR.

In accordance with  the law? But does this not defeat the AG’s premise?

When the AG considered the requirement for legal basis in national law, he invited that CJEU to confirm that the interpretation of ‘provided for by law’ in Article 52(1) CFR accorded with that of the ECtHR’s jurisprudence on a measure being ‘in accordance with the law’(para 134-137). The AG highlighted that the ECtHR has developed a substantial body of jurisprudence on the matter which could be summarised as follows:

·         A legal basis that is adequately accessible and foreseeable i.e. the law is formulated with sufficient precision to enable the individual — if need be with appropriate advice — to regulate their conduct,

·         This legal basis must provide adequate protection against arbitrary interference, and

·         Must define with sufficient clarity the scope and manner of exercise of the power conferred on the competent authorities (para 139).

The AG was of the opinion that ‘provided for by law’ in Article 52(1) CFR needs to be the same as that ascribed to it in connection with the ECHR (para 140). The AG’s reasoning was as follows:

·         Article 53 CFR explains that its provisions must never be inferior to what is guaranteed by the ECHR and therefore the CFR must at least be as stringent as the ECHR (para 141),

·         It would be inappropriate to impose different criteria on the Member States depending on which of those two instruments was under consideration (para 142).

The AG felt that general data retention obligations must be founded on a legal basis that is adequately accessible and foreseeable and provides adequate protection against arbitrary interference (para 143). This would solve the problem of the CJEU falling into ‘the trap of tautologically regarding a legal norm, the validity of which is being questioned, as being allegedly in accordance with the law because it is a law.’

This then raises the interesting issue, if this is the preferred interpretation, how could a general obligation to retain data not amount to arbitrary interference? The AG later admits that the disadvantage of this general obligation arises ‘from the fact that the vast majority of the data retained will relate to persons who will never be connected in any way with serious crime’ (para 252). If the vast majority of data retained is of individuals who are unrelated to any serious crime, how could this even be suggested to not be arbitrary?

If in line with the ECtHR’s jurisprudence, that for a measure to be in accordance with the law, a measure must be sufficiently precise so individuals can regulate their conduct, how could this square with general obligations to retain data which occurs irrespective of conduct? The ECtHR’s Grand Chamber in Zakharov v Russia maintained that the ‘automatic storage for six months of clearly irrelevant data cannot be considered justified under Article 8’ (para 255). As the AG indicated, most data retained will have no relation to the fight against serious crime and therefore, in line with Zakharov, cannot be justified under Article 8. Member States would then have to justify why most data unrelated to serious crime is relevant to the fight against serious crime. In stressing that Article 52(1) should reflect the ECtHR’s jurisprudence the AG may have undermined his own position when believing that general obligations to retain data were permissible under EU law by unleashing the ECHR in terms of Recital 11 and the interpretation of ‘provided for by law.’

Data retention does not adversely affect the essence of the right, or does it, or should it?

The AG listed six requirements a general data retention obligation must meet to be justified, one of such is that it ‘must observe the essence of the rights enshrined in the Charter’ (para 132). The AG recalled that Article 52(1) CFR provides that any limitation to the rights enshrined must respect the essence of those rights and freedoms (para 155). The AG referred to para 39 of Digital Rights Ireland where the CJEU held that the DRD did not adversely affect Article 7 CFR since it did not permit the acquisition of knowledge of the content of the electronic communications as such (para 156). The AG felt this also applied to the current case (para 157) and this was equally the case for Article 8 CFR (paras 158-9) but ultimately left it for the CJEU to decide (para 160).

However, the AG later contradicts his own opinion when considering the disadvantages of data retention. The AG accepted that ‘a general data retention obligation will facilitate equally serious interference as targeted surveillance measures, including those which intercept the content of communications’ (para 254). The AG stopped short of referring to data retention as mass surveillance, but instead referred to it as mass interference (para 255) and that it affected a substantial portion, if not all of the relevant population (para 256). The AG even went further by describing with the example of an individual who access retained data (instead of analysing content) to screen out those within the Member State who have a psychological disorder or any field specialist medicine (para 257). The AG continues, this same person who sought to find out who opposed government policies, could do so with the possibility of identifying individuals taking part in public demonstrations against the government (para 258). 

The AG agreed with the position of several civil society groups, the Law Society and United Nations High Commissioner for Human Rights that the ‘risks associated with access to communications data (or ‘metadata’) may be as great or even greater than those arising from access to the content of communications’ (para 259). The AG further added that the examples given demonstrate that ‘metadata’ can facilitate ‘the almost instantaneous cataloguing of entire populations, something which the content of communications does not’ (para 259). The AG also added that there is was nothing theoretical about the risks of abuse or illegal access to retained data (based on the number of requests by Swedish and UK authorities) and that such risk of ‘illegal access on the part of any person, is as substantial as the existence of computerised databases is extensive’ (para 260).

Considering the incredible detail the AG went to describe the risks posed by the retention of data, it makes little sense to have the opinion that a general data retention obligation does not adversely affect the essence of the right. The AG and CJEU in Digital Rights Ireland premise of this was based on the idea that communications data would not permit acquisition of knowledge of the content of the electronic communications. Yet the AG described in great detail the amount of knowledge that could be gained from communications data. And it is this acquisition of knowledge that is the important factor, the AG described the example of the ability of gaining sensitive knowledge without analysing the content. And so the AG, like the CJEU has created an arbitrary distinction that although the same knowledge can be gained from communications data or content, it is only access to content that could adversely affect the essence of the right (para 94). If it is acknowledged that similar knowledge can be gained from both measures, the CJEU and indeed the AG has not sufficient explained this differential treatment. Furthermore, by only considering that access to content adversely affects the essence of the right, this would promote the use of retention and access to communications data to a greater degree which as the AG admits, can provide far richer information than content.

Indiscriminate data retention maybe EU compliant, but not ECHR compliant

The AG highlighted that the CJEU in Digital Rights Ireland pointed out that the DRD covered all users and all traffic data without differentiation or limitation (para 197). The AG described what the CJEU considered the practical implications of the absence of differentiation i.e. concerning those with no link to serious crime, no relationship between retention and threat to public security, and no temporal, geographical and associate based restriction (para 198). The AG concluded that the CJEU did not hold that the absence of differentiation in itself went beyond what was strictly necessary (para 199).

The AG justified this one four grounds, firstly, the CJEU ruled the DRD as invalid because of the cumulative effects of generalised data retention and the lack of safeguards which sought to limit what strictly necessary for the interference with Article 7 and 8 CFR (paras 201-202). Secondly, in light of Schrems (para 93) the AG inferred again that only general data retention obligations accompanied by sufficient safeguards would be EU law compatible (para 205). Thirdly, the AG felt national measures should be scrutinised at a national level, where the national courts should rigorously verify whether general data retention obligations are the most effective at fighting serious crime i.e. whether there are other less intrusive alternatives (paras 209-210). Fourthly, the AG agreed with the Estonian Government that limiting data retention to a particular geographical area may cause a geographical shift in criminal activity (para 214).

Considering indiscriminate data retention as permissible under EU law if there is a sufficiently robust safeguard mechanism creates problems with the ECHR. In the case of S and Marper v United Kingdom the issue at hand was the retention of finger print and DNA records. In finding the retention regime incompatible with Article 8 (para 126) the ECtHR was struck by blanket and indiscriminate nature of the power because:

[119] material may be retained irrespective of the nature or gravity of the offence with which the individual was originally suspected or of the age of the suspected offender...

[122] Of particular concern in the present context is the risk of stigmatisation, stemming from the fact that persons in the position of the applicants, who have not been convicted of any offence and are entitled to the presumption of innocence, are treated in the same way as convicted persons...

[125] In conclusion, the Court finds that the blanket and indiscriminate nature of the powers of retention of the fingerprints, cellular samples and DNA profiles of persons suspected but not convicted of offences, as applied in the case of the present applicants, fails to strike a fair balance between the competing public and private interests and that the respondent State has overstepped any acceptable margin of appreciation in this regard. Accordingly, the retention at issue constitutes a disproportionate interference with the applicants’ right to respect for private life and cannot be regarded as necessary in a democratic society. This conclusion obviates the need for the Court to consider the applicants’ criticism regarding the adequacy of certain particular safeguards, such as too broad an access to the personal data concerned and insufficient protection against the misuse or abuse of such data.

 S and Marper’s significance has been linked to data retention, and therefore it is important to apply the principles to the AG’s Opinion. The ECtHR criticised the UK regime for not distinguishing between those who had been suspected and those who had committed offences. Regarding data retention obligations, this indiscriminate power is more profound because suspicion would not be a necessary component for the justification of retention. As the AG highlighted, most data retained is of individuals who bare no relation to serious crime and therefore creates issue with the presumption of innocence to an unacceptable level. The most important aspect of the ECtHR’s reasoning in S and Marper was that the retention itself was contrary to the Convention without having to consider the safeguards that may have been in place. This is direct contrast with Digital Rights Ireland and the AG’s Opinion.

Regarding the fourth point, it is submitted that the Estonian Government and the AG misunderstood how data retention and location data works in practice. It is not the physical area that is the important factor, but the location of the device in question at a particular time. This was apparent in Uzun v Germany when the ECtHR described Global Positioning System (GPS) as allowing ‘continuous location, without lapse of time, of objects equipped with a GPS receiver anywhere on earth, with a maximum tolerance of 50 metres at the time’ (para 12-13). This is all the more relevant as location data is becoming more and more sophisticated. Therefore applying a data retention obligation in a specific geographical area creates a false premise as the obligation on the service provider is to keep record of the location data of a device when it’s service is used (which will indicate where an individual might be) irrespective of geographical area. Furthermore a targeted data retention approach would not be confined to a geographical as such, but to criminal activity (based on individual use of device and service) within a particular area.      

  

Six months retention is reasonable?

The issue of retention period was also considered by the AG (para 242) who felt that according to Zakharov a period of six months would be reasonable provided irrelevant data was immediately destroyed (para 243). However, by making this connection, the AG created a false analogy of what the ECtHR held. Zakharov concerned judicially authorised interception and monitoring of communications data of individuals for six months (para 44-48). Therefore the analogy with targeted measures and that of general data retention begins to falter, as in the AG’s own words ‘metadata’ facilitates the almost instantaneous cataloguing of entire populations, something which the content of communications (via interception) does not (para 259).

Conclusion  

Although most of the finer details, in the Opinion of the AG should be left to national courts (para 263) the issue of data retention as a challenge to fundamental rights persists. The AG, by placing great significance on the ECHR and the ECtHR’s jurisprudence unwittingly undermined some of his own key points because they do not accord with the ECHR. It is unlikely that the CJEU are going to rule per se that a general obligation to retain communications data is incompatible with EU law, and therefore maybe an issue for the ECtHR to decide themselves. In light of S and Marper it is possible that the ECtHR would produce a ruling that is in contrast to the CJEU. The United Nations General Assembly has affirmed that same rights that people have offline must also be protected online. The late Caspar Bowden once described data retention as akin to having CCTV inside your head. And so the question becomes, would the AG/CJEU consider that CCTV inside every home would be compatible with EU law provided that access to that footage would be circumscribed by adequate safeguards?

Barnard & Peers: chapter 9

JHA4: chapter II:7

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