Halet v Luxembourg: A Victory of the Unsung Heroes

 

 

Dimitrios Kafteranis* and Stelios Andreadakis**

 

Photo credit: CherryX, via Wikimedia Commons

 

*Assistant Professor in Law, Centre for Financial and Corporate Integrity, Coventry University

** Reader in Corporate and Financial Law, Brunel University London

 

 

The Grand Chamber judgment of the European Court of Human Rights (ECtHR) on 14 February 2023 on the case Halet v. Luxembourg is a victory for whistleblowers and the right to freedom of expression. The long-awaited judgment has put an end to a legal battle of more than 10 years for Raphael Halet and rectified the previous decisions of the Luxembourg Court of Appeal and of the third Chamber of the ECtHR. The Court stated that whistleblowers should be protected under Article 10 of the European Convention on Human Rights (ECHR) when they report facts of public interest. The tax matters at hand were of public interest and the Court made a significant statement in that regard by protecting  Mr Halet, who did not report an illegal practice or a wrongdoing, but “certain information that concerns the functioning of public authorities in a democratic society and sparks a public debate, giving rise to controversy likely to create  a legitimate interest on the public’s part in having knowledge of the information in order to reach an informed opinion as to whether or not it reveals harm to the public interest”.

 

The Court had to decide whether Mr Halet’s criminal conviction, following the disclosure by him to a journalist of sixteen documents issued by his employer had amounted to a disproportionate interference with his right to freedom of expression. The Luxembourg Court of Appeal had decided that the damage that Mr Halet caused to his employer, PricewaterhouseCoopers (PwC), is not outweighed by the interest in having the information. This position was confirmed by the third Chamber of the ECtHR. The Grand Chamber referred to its established case law and the famous Guja criteria. These criteria are: (1) the channel for disclosure, (2) the public interest, (3) the authenticity of the information, (4) good faith, (5) damage to the employer and an assessment of whether such damage outweighed the public interest, and (6) the sanction imposed. While the Grand Chamber examined the six criteria again, the focus was on the fifth and sixth criterion.

 

First, the Court clarified that the criteria should be examined without a specific order as there is no hierarchy or order to be followed in their examination. Concerning the balancing of the public interest in the disclosed information and the detrimental effects of the disclosure, the Court did not consider it as a conflict of rights (as suggested by the Luxembourg government). It examined, instead, whether the domestic courts struck a fair balance between, on the one hand, the public interest of the disclosed documents, and, on the other hand, the entirety of the harmful effects arising from their disclosure. The Grand Chamber stressed that the Luxembourg Court’s requirement of “essential, new and previously unknown” disclosed information is not relevant. The Court highlighted that a public debate may be ongoing and additional information can come at a later stage. The fact that a public debate on tax practices was already in progress in Luxembourg could not reduce the relevance of the disclosed documents. The Court actually spent several paragraphs in its judgment on the importance of the debate around taxation and dubious practices of tax avoidance and tax optimisation extensively used nowadays. It is sometimes necessary for the alarm to be raised several times on the same subject before the public authorities, or the society as a whole, are mobilised and exercise increased vigilance.

 

On the issue of balancing the damage to the employer and the need of the public to be informed, the Court took a different stance compared to the previous decisions. While it acknowledged the detrimental effect of the disclosures on PwC, it was decided that the Luxembourg Court of Appeal did not sufficiently justify why the damage suffered by PwC had not been outweighed by the general interest. The criticism of the Grand Chamber was that the Luxembourg Court of Appeal only referred to “damage to …… image” and “loss of confidence”, but did not enter into details. In fact, PwC had “a difficult year” following the Luxleaks investigations, but quickly increased its revenues and expanded its activities again. The Court concluded that, in the balancing exercise made by the domestic courts, the public interest in the information revealed was analysed narrowly and, on the question of the damage, the Luxembourg Court only focused on the damaged sustained by PwC, disregarding other relevant issues, such as the harm also caused to the private interests of PwC’s customers and to the public interest in preventing and punishing theft and in respect for professional secrecy. As a result, the Grand Chamber found that the Luxembourg Court of Appeal erred on the assessment of this criterion.

 

Furthermore, the Grand Chamber examined the sixth criterion: the severity of the sanction. It highlighted the importance of whistleblowers for the society, while stressing that any undue restriction on them may have a chilling effect on and dissuade potential whistleblowers to come forward. Regarding the criminal conviction of Mr Halet, the Court concluded that it was not proportionate in light of the legitimate aim pursued and Luxembourg’s interference with Mr Halet’s right to freedom of expression was not “necessary in a democratic society”. The Court awarded €15000 non-pecuniary damage and €40000 covering costs. It should be noted that Mr Halet spent almost ten years in this legal saga, so it is worth considering whether this compensation can really make up for the financial damage he suffered, not to mention the damage to his career and professional standing. It should be taken into consideration that whistleblowers often lose their jobs and have to undertake lengthy and expensive legal battles, thus the courts should, in the future, look for more efficient ways to compensate them.

 

The joint dissenting opinion of the four Judges at the end of the judgment is also worthy of examination. The four Judges criticised the Grand Chamber’s approach on the notion of public interest, on the importance of safeguarding professional secrecy, on the balancing exercise and on the severity of the sanction. An important comment is that the dissenting Judges referred to Mr Antoine Deltour as a bad faith worker who stole documents. Considering that Mr Deltour was not found to be in bad faith and his “theft” was legally justified due to him being a whistleblower, the use of such characterisations by the dissenting Judges came as a surprise. The reasoning of the dissenting Judges reflects a rather “old-school” analysis of whistleblowing, which questions the co-existence of whistleblowing and professional secrecy as well as its relation to criminal law. The fact that whistleblowers report events, which are not illegal per se, but can initiate a public debate, is significant, as it promotes transparency, accountability and allows the public to find out about instances of wrongdoing. Having said this, it is important to note that everything should be done in a proportionate way and never in bad faith.

 

Overall, the Grand Chamber’s judgment can be seen as a victory for all unsung heroes, who blew the whistle and suffered retaliation, blacklisting and demotion. The Court sent a message that whistleblowers should be heard and not suppressed. As it was emphasised, the purpose of whistleblowing is not only to uncover and draw attention to information of public interest, but also to bring about change in the situation to which that information relates, where appropriate, by securing remedial action by the competent public authorities or the private persons concerned. This is what Ralph Nader had in mind, when he coined the term for the first time in 1960s: whistleblowing as an alarm mechanism, which aims at alerting, informing, changing, but, above all, protecting our democratic society.

Freedom to insult? Balancing freedom of expression with religious tolerance in ECHR case law

Professor Steve Peers, University of Essex

A recent judgment of the European Court of Human Rights has raised again the question of whether there should be limits on free speech when someone might be offended by it – in this case, concerning the Muslim faith. It’s a good opportunity to explain the context of the case and assess what – if any – limits should be acceptable on free speech in such cases.

Judgment

The saga of ES v Austria began at a public seminar on “Basic Information on Islam” organised by the institute of a right-wing Austrian political party. An undercover journalist complained to the police about some of the comments made at the seminar (in particular about Mohamed as inclined to pedophilia), and the speaker was prosecuted. She was ultimately convicted and ordered to pay a small fine as a penalty, for breach of Article 188 of the Austrian Criminal Code:

 “Whoever, in circumstances where his or her behaviour is likely to arouse justified indignation, publicly disparages or insults a person who, or an object which, is an object of veneration of a church or religious community established within the country, or a dogma, a lawful custom or a lawful institution of such a church or religious community, shall be liable to up to six months’ imprisonment or a day-fine for a period of up to 360 days.”

 The conviction was upheld on appeal throughout the national courts, and the applicant then complained to the European Court of Human Rights (ECtHR) that her right to freedom of expression under Article 10 of the European Court of Human Rights (ECHR) had been infringed. Since her free expression had obviously been penalised, the crucial issue in the case was whether the interference with that right was justified under Article 10(2) ECHR, which provides:

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

The restriction in this case was “prescribed by law” (as can be seen above), and so the issue is whether the restriction was “necessary in a democratic society”. The Court began its assessment by reiterating (from its prior case law) that freedom of speech is “one of the essential foundations of a democratic society” and applies not just to statements that are “regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb”. Article 10(2) provides “little scope…for restrictions on political speech or on debate on questions of public interest”. In particular, believers in a religion, “irrespective of whether they do so as members of a religious majority or a minority, therefore cannot expect to be exempt from criticism. They must tolerate and accept the denial by others of their religious beliefs and even the propagation by others of doctrines hostile to their faith.”

Having said that, though, the “duties and responsibilities” referred to in Article 10 include (referring again to case law):

“the general requirement to ensure the peaceful enjoyment of the rights guaranteed under Article 9 [freedom of religion] to the holders of such beliefs including a duty to avoid as far as possible an expression that is, in regard to objects of veneration, gratuitously offensive to others and profane….Where such expressions go beyond the limits of a critical denial of other people’s religious beliefs and are likely to incite religious intolerance, for example in the event of an improper or even abusive attack on an object of religious veneration, a State may legitimately consider them to be incompatible with respect for the freedom of thought, conscience and religion and take proportionate restrictive measures….In addition, expressions that seek to spread, incite or justify hatred based on intolerance, including religious intolerance, do not enjoy the protection afforded by Article 10 of the Convention.”

In this context, prior case law had concluded that ECHR Contracting States “enjoy a certain margin of appreciation” in this field – meaning that the ECtHR does not intensively review how they strike the balance between freedom of speech and the protection of religious sensibilities, in particular as there is no “uniform European conception” of how to strike this balance. Moreover, ECHR States also “have the positive obligation under Article 9 of the Convention of ensuring the peaceful co‑existence of all religions and those not belonging to a religious group by ensuring mutual tolerance”. (A “positive obligation” is a legal requirement for the State to take action to protect individual rights, not just to refrain from action such as banning speech or prosecuting people for their comments). A State “may therefore legitimately consider it necessary” to limit the free speech of some which is “judged incompatible with respect for the freedom of thought, conscience and religion of others”, although ultimately the ECtHR exercises some review over how a State strikes that balance in each particular case.

Prior case law has turned on whether a value judgment has sufficient factual proof to support it, and the ECtHR’s role is not “to take the place of the national authorities”, but to review if their decisions are based “on an acceptable assessment of the relevant facts…and whether the interference corresponded to a “pressing social need” and was “proportionate to the legitimate aim pursued””, in light of the “content of the statements” and “the context in which they were made”. Also, “the nature and severity of the penalty imposed are also factors to be taken into account”. If the national authorities have already applied such a balancing exercise in line with these criteria, “the Court would require strong reasons to substitute its view for that of the domestic courts”.

Applying those principles to this case, the subject matter was “particularly sensitive”, and so “the domestic authorities had a wide margin of appreciation” because “they were in a better position to evaluate which statements were likely to disturb the religious peace in their country”. The seminars in question were public, and Austrian law did not simply “incriminate all behaviour that is likely to hurt religious feelings or amounts to blasphemy, but additionally requires that the circumstances of such behaviour were able to arouse justified indignation, therefore aiming at the protection of religious peace and tolerance.” The national courts “extensively explained why they considered that the applicant’s statements had been capable of arousing justified indignation”, and the ECtHR agreed with the lower court “that presenting objects of religious worship in a provocative way capable of hurting the feelings of the followers of that religion could be conceived as a malicious violation of the spirit of tolerance, which was one of the bases of a democratic society”.

The Court went on to agree with the national courts that in this case, value judgments did not have “sufficient factual basis”, and rejected the argument that “a few individual statements had to be tolerated during a lively discussion”. In the judges’ view, “it is not compatible with Article 10 of the Convention to pack incriminating statements into the wrapping of an otherwise acceptable expression of opinion and deduce that this would render the statements exceeding the permissible limits of freedom of expression passable.” Finally, the Court took into account the very modest sanctions applied to the speaker.

Comments

Context

As noted at the outset, it’s necessary to explain the context of this case – given that it seems to be widely misunderstood. First of all, the ECtHR is not an “EU court” applying EU law, but the court of 47 European countries applying the ECHR, an international treaty separate from EU law. EU law touches on religious issues when it comes to religious discrimination in employment (see the case law discussed here), animal welfare issues, or persecution of refugees on grounds of religion – but has nothing to do with the issue of prosecution for offending religious sensibilities.

Secondly, the ECtHR is in no sense applying “Sharia law” here. The complaint was not made by a Muslim organisation, but by an undercover journalist. The Austrian law was not enacted solely to protect the Islamic faith, but other faiths too; and it was not motivated by Islamic doctrine. The ECtHR distinguishes the Austrian law from a ban on “blasphemy”, considering that it requires an additional element. Nothing in the judges’ reasoning refers to “defaming” Mohamed (although the Austrian Supreme Court is quoted as using that term).  Nor does the Court require other countries to follow Austria’s lead: although it refers to positive obligations to protect freedom of religion, it does not spell out what they are, for the obvious reason that the applicant was not arguing a failure by Austria of any positive obligations in this case.

Thirdly, as my summary of the judgment sets out, there’s nothing unusual or exceptional about the underlying legal reasoning in the Court’s approach here. It’s applying its long-standing doctrine related to the balance between freedom of expression and freedom of religion. This is indeed an area where the “margin of appreciation”, giving considerable deference to States’ choices, has long been applied widely, although States do not always win. (Have a look at the cases linked to in the judgment, or the summary in this fact sheet, for more details: note that there are judgments arguably deferential to Christianity, not just Islam).

Finally, on the same point, it should be noted that the Court, sometimes criticised for being activist, is in this case conversely criticised for being deferential to States. The judges leave the remedy for those who criticise the law in Austria (or similar laws elsewhere) as the political process in Austria, rather than the remote court in Strasbourg. But those who usually criticise foreign judges’ interference now seem disappointed that those foreign judges didn’t interfere to effectively endorse their own criticism of Islam.

Assessment of the judgment

Although some of the Court’s critics seem to have misunderstood the context of the judgment, I would agree that there is a lot in the judgment to criticise. What I would question here is both the Court’s application of its “margin of appreciation” doctrine to the facts of this case, and its failure to reconsider that doctrine in general. On the first point, while I agree that the small fine is relevant, it’s odd that the Court however fails to consider the absence of any complaint by a Muslim organisation as such, given that its reasoning turns on the importance of the objective of ensuring religious peace. Its distinction between marrying one child and a preference for children in general comes across as sophistry. And its concern that anyone could have attended the political seminar overlooks the broader context of an Internet full of critics of Islam: if the problem is a forest, does it make sense to prosecute an individual tree?

On the Court’s failure to reconsider its doctrine in general, there’s a procedural point here: the judgment was delivered by a small Chamber of few judges, not a Grand Chamber with many more; and only the Grand Chamber has the authority to reconsider long-standing jurisprudence. (The applicant can request the Grand Chamber to review this Chamber judgment). But I would hope that the Grand Chamber has the opportunity to do so, and uses it. Here’s why.

As a confirmed agnostic who attends Catholic mass, I can see the conflict of rights here in personal terms. Faith is at the core of many people’s personal identity. It inspires the spiritual, explains the inexplicable, and consoles the inconsolable; it provides a community to celebrate the breaking of fasts, the liberation from slavery or the miracle of resurrection. It celebrates birth, codifies life, and commemorates death – yet offers hope of immortality.

Yet I can see why some wish to condemn one faith, or all faiths. There’s no shortage of abuse, discrimination, persecution, hatred or violence based on religion. And some generally believe that all religions are nonsense: that in a scientific age, with lots of suffering before death that we should be concerned about, it’s long past time to go cold turkey on the opiate of the masses.

My answer to the potential conflict of rights is to respect others’ right to believe what they want to believe (or not believe). But others have a different view. And freedom of speech is not just the freedom to calm people down: it’s also the freedom to wind people up, turn people on, or piss people off.

The flaw with the Court’s traditional case law is that it places too much priority on the right not to be offended, and not enough on the right to offend. Indeed, the Court quotes – but does not explicitly follow – a report from the Venice Commission, which recommends that States should abolish the offence of blasphemy or religious insult (the latter, with added elements, seems to be the basis of its recent judgment) and rely solely instead on incitement to hatred. I would go further still, and criminalise only incitement to hatred which advocates violence or other criminality.

So “Muslims are vile; let’s attack them” should be criminal; as should the attack itself, or the criminal damage entailed by a swastika drawn on a synagogue. I take the point that swastikas don’t draw themselves, and that if someone merely says “Muslims are vile”, his listeners may well add “let’s attack them” in their own minds and act on it. But there needs to be a line drawn somewhere; a whole range of statements could trigger a potentially violent listener, so we have to exercise some judgement as to which statements should reasonably be criminalised.

Moreover, incriminating many critics of Islam (or others considered intolerant) who don’t directly advocate violence doesn’t solve the problem of intolerance; it fuels it, allowing those critics to parade themselves as free speech advocates, or even martyrs.  Prosecuting them for non-violent statements simply attracts more attention to their views. (This is also an answer to the valid “it’s easy to advocate freedom of speech when you’re not the target” arguments).

Two important qualifications, though. First of all, the freedom of expression is not a right to a platform: there’s no legal obligation for the mainstream media or social networks, for instance, to give any particular view uncritical attention, or any attention at all. Secondly, freedom of expression works both ways (that’s rather the point): it’s equally applicable to those who want to mock or react to Islamophobes or their ilk, and criticising someone’s views is not the same as “silencing” them. There’s nothing quite as pathetic as (for instance) the sight of the supporters of Trump’s crassness and intolerance crying crocodile tears in reaction to a comedian making a joke about his press secretary’s eye-shadow.

Ultimately, though, the problem with banning non-violent criticism of religion isn’t just about tactics; it’s about the paradox of intolerance. It’s logically impossible to preach tolerance while saying that dissenting views should be banned – even if those views are not very tolerant themselves. Fundamentally, a good idea – whether religious or secular – should speak for itself, not shut its critics up.  

Barnard & Peers: chapter 9

Photo: Islamic Centre, Vienna; photo credit: Wien.info

Analysis of the ECtHR judgment in Big Brother Watch: part 2

Lorna Woods, Professor of Internet Law, University of Essex

(These comments on the judgment follow part 1 of the analysis, which explained the Court’s reasoning).

The Big Brother Watch judgment is, depending on your point of view, a confirmation of the possibility of bulk surveillance (para 314) or a recognition of the fact that the Regulation of Investigatory Powers Act (RIPA) regime was insufficient and that, to the extent that these weaknesses are copied over into the Investigatory Powers Act (IPA), that act is deficient also.  These two different views reflect the fact that the judgment is long and complex and that a one sentence summary is unlikely to do justice to all its nuances. In fact, in an area where there is a rapidly increasing body of case law, it is likely that the full significance of the judgment will not be known for some time and we know how it has been interpreted, followed, distinguished, over-written or simply ignored.  What follows then is necessarily a preliminary indication of the issues and points of significance that arise from the judgment.  It contains a number of themes, or questions:-

-          To what extent is there a consistent, even if gradated, approach across the different forms of surveillance?

-          To what extent should we say that the case law from the analogue era is not the best indicator of necessary safeguards for the digital?

-          What impact will this ruling have for the IPA – especially given that the Court’s assessment of the RIPA regime changes to improve accountability following on from the Snowden disclosures?

Admissibility

The first question, at least in relation to two of the sets of applicants, was the question of exhaustion.  While the Court accepted that there were “special circumstances” (para 268) (recognised in Sejdovic v Italy (app no. 56581/00)), so that the case was admissible, it is worth noting briefly the Court’s approach in getting to this point.

The applicant’s argument was based on the reasoning of the Court in Kennedy, that while the Investigatory Powers Tribunal (IPT) has heard cases which effectively constitute a challenge to the legal regime itself (rather than a claim of interference in the claimant’s individual case), the domestic regime did not obviously “benefit the applicant, given that it did not appear to give rise to a binding obligation on the State to remedy the incompatibility” (Big Brother Watch para 251, Kennedy para 109). Here, the Court relied on Zakharov - in terms of its discussion of victimhood and the admissibility of a claim in abstracto rather than in the context of availability of a remedy - to suggest that the distinction in Kennedy between an individual grievance and a general complaint against the system (in which latter case the IPT cannot provide a remedy) as regards has been removed. 

The fact that there might still not be a remedy for an individual in the context of a general complaint, even if the IPT agrees to hear the complaint, is not addressed. Is the Court suggesting that a complainant should (in any event) bring an individual challenge so as to find a remedy to exhaust? Such a suggestion would follow the same line as the reasoning of the concurring opinion in Zakharov: that showed a preference for specific cases of interference. 

While the Court emphasised the importance of the IPT and how it has changed over its 15 year period – specifically its independence, the scope of its powers and techniques it has developed to allow it to hear cases without running into difficulties from the sensitivity of some of claims, it did not address head on the fact that the IPT has only rarely found against the Government in cases involving the security and intelligence services and that only after the Snowden disclosures (see for details the IPT’s report covering 2011-15 and the much shorter statistical report covering 2016).  While the elucidation of procedures – especially those “below the waterline” - is clearly helpful to the Court (see para 257), it does not help the victim if there is no remedy. 

This approach signals that the Court will not accept more applications which seek to avoid the delays and expense inherent in bringing an action before the IPT – campaigners take note.

Merits of Case

Article 8 and the Section 8(4) Regime

The applicants argued that the s. 8(4) regime was not lawful in the sense that the regime was complex and significant elements of the regime were not made public but were “below the waterline”; further they argued it did not comply with the 6 requirements to guard against unfettered discretion and the risk of abuse found in Weber.  The Court’s response is detailed and considered but -in the end – perhaps overly deferential to a set of institutions which seemed happily unaware of the practices of the security and intelligence services.

The Court’s reasoning starts with the statement that in previous judgments different approaches had been taken to different types of surveillance and that “there is no one set of general principles which apply in all cases concerning secret measures of surveillance” (para 303).  Weber consolidated the position in a number of earlier cases, though these were not cited: e.g Malone (App no. 8691/79); Huvig (App no. 11105/84) and -broadly speaking - Leander (App No. 9248/81 but crucially specifically identified the criteria whereas earlier case law operated on the basis of a broader test. Later in its judgment the Court pointed to Uzun (App no. 35623/05) (concerning GPS tracking where the Court considered that because the tracking of movements in public disclosed less information about the conduct, opinions and feelings of the person concerned less strict safeguards were required) and RE (App no. 62498/11) (concerning covert surveillance of consultations of individuals with legal advisors in a police station) as cases involving surveillance where the Weber 6 criteria were not applied (para 351).  Nonetheless, following the standard line for interception cases (albeit targetted interception rather than bulk), it agreed that the 6 principles from Weber should be the starting point for assessing foreseeability. In this, the Court is following a well-trodden path – one that case also be seen in Centrum för Rättvisa (App no. 35252/08) which also deals with bulk interception (para 99).  The Court found the complexity point was a question of foreseeability; insofar as it dealt with that issue, it did so as part of the Weber criteria.

While a consistent central principle is desirable, and the intention of the Court to set this out is to be applauded, the approach of the Court here suggests that there are differences between types of surveillance which are relevant (see similarly RE para 130), but it does not give us a clear framework as to what factors to be taken into account in determining what relevant differences are.  Should we look at the distinction between bulk and targeted interception, between content interception and meta-data collection; or even between the legitimate purposes? It may be that all are relevant; it would have been helpful had the impact of these differences been clearly mapped; this judgment, however, seems more to give rise to questions than answers.

One key factor the Court emphasised was the level of intrusion – and in this it followed previous jurisprudence. Notably, it argued that:

it would be wrong automatically to assume that bulk interception constitutes a greater intrusion into the private life of an individual than targeted interception, which by its nature is more likely to result in the acquisition and examination of a large volume of his or her communications (para 316). 

Does this mean that the level of safeguards in relation to bulk acquisition should be less than those for targeted interception based on the degree of intrusion? Or, might we argue that untargeted acquisition is more problematic because of its impact on society generally and because it is less likely to be proportionate? The Court deals with this issue by distinguishing between interception and selection/examination.  Another area in which the Court is unclear on the level of intrusion is in its consideration of meta data and whether it is less intrusive – more intrusive or similarly intrusive albeit in a different way. 

Nonetheless, in a statement that could be considered an important step forward in terms of the Court’s recognition of the importance of meta data, it Court commented that it was “not persuaded that the acquisition of related communications data is necessarily less intrusive that the acquisition of content” and by contrast to content interception, bulk acquisition magnified the problem (para 356). It seems from the discussion of the related communications that the Weber criteria can be applied to bulk communications data acquisition (para 350).  Finally, though lying outside the fact pattern, the Court referred to its recent decision in Ben Faiza (App no. 31446/12) to say that (perhaps in contrast to Uzun) that real time tracking was more intrusive than the transfer of historical data. 

It is regrettable that – despite its recognition of the significance of communications data - the Court did not investigate further the points raised in some submissions regarding the scope of the data collected and the impact of new technologies in terms of the types of analytical techniques used.  So far this issue has not attracted much judicial attention (the exception being the brief mention in the ECJ’s Canada PNR Opinion (Opinion 1/15)). Judge Koskelo in a partly concurring partly dissenting opinion commented that on the sea change that has taken place in terms of the amount and nature of data that is available, as well as mechanisms for carrying out surveillance, exposing individuals to greater intrusion than before (paras 11-13).

Despite this ‘sea change’, the Court also rejected the proposal to ‘update’ the Weber criteria to require objective evidence of reasonable suspicion in relation to the persons for whom data is being sought and the subsequent notification of the surveillance subject on the basis that it “would be inconsistent with the Court’s acknowledgement that the operation of a bulk interception regime in principle falls within a State’s margin of appreciation” (para 317).  This suggests that the powers of European review are in fact limited so that they cannot exclude a particular instance of bulk surveillance.  Such a position would seem to be a movement from that which says bulk surveillance is not automatically prohibited but it still must satisfy the three-stage test in Article 8(2) as determined at Convention level.  In terms of proportionality of a bulk regime, the Court refers to the Anderson Review of Bulk Powers. It accepts its findings that there is a case for bulk surveillance, but seemingly equates that to a finding that such surveillance is proportionate (paras 384-6). It is clear from the review, however, that the question of the proportionality of any such measures was not considered, this being a matter for Parliament.

A further consideration is the extent to which the proportionality analysis changes (or should change) depending on the public interest objective in view.  The headline statement about the acceptability of bulk surveillance related to national security, yet RIPA allowed (and the IPA does allow) the carrying out of bulk surveillance on a broader range of grounds.  In any event, as Judge Koskelo commented, is it appropriate to judge the adequacy of safeguards in the context of cases that arose in very different factual circumstances? In that context, note that much of the assessment of the facts in this case is based on what the Court previously found in Kennedy – prior to the Snowden disclosures. Further, this approach to generalised surveillance seems to be a point at which there is some divergence between the Court and the ECJ, as noted in the Joint Partly Dissenting and Partly Concurring Opinion of Judges Pardalos and Eicke.

The Court suggested that the 6 criteria in Weber needed to be adapted for the context of bulk surveillance (as it did in Centrum för Rättvisa para 114) despite the fact that Weber itself concerned a bulk regime. Moreover, when the Grand Chamber applied the Weber criteria in the case of targeted interception it did not adapt Weber, although it also considered ‘additional relevant factors’ in relation to the consideration of ‘necessary in a democratic society’ (Zakharov, para 232). It is not therefore clear what the nature of and necessity for this adaptation is in this case.  The Court here also proposed considering the regime in the light of the Zakharov additional factors (para 320).  This consolidation sees to becoming more common (see also Centrum för Rättvisa). It should be noted, however, that while the two sets of considerations will be based on similar facts, their content is slightly different, though whether this consolidation has a detrimental impact on the level of protection afforded is an open question. 

Another issue is the extent to which the ex post controls can be seen as compensating for a lack of ex ante controls.  While Judge Koskelo expressed concerns about the reliance on ex post control generally (paras 17, 20), a key point from this judgment is the Court’s re-iteration that prior judicial authorisation is not essential. Nonetheless, although the Court emphasised the importance of the ex post control by the IPT (para 318) (the new double lock system under the IPA not being in place at the time of the hearing), in relation to the selection of the material the ex post oversight seemed insufficient (paras 345-346).  It may be that the difference in the Court’s approach can be explained by its view of the degree of intrusion, with the selection of material being more intrusive than the collection though there is still a degree of uncertainty in what the test requires here. 

Significantly, the Court has viewed the interception of content as a potential violation in its own right. This seems to contradict the commonly made assertion that the automated collection of data (whether content of communications, communications meta data – or other data eg location via GPS or ANPR) is not an intrusion.  It also reminds us that the interception of content and its examination is not one event, but on ongoing process that may lead to multiple intrusions which need to be assessed individually (the data sharing reasoning reiterates this point too).  While the IPA has brought in greater ex ante controls, this is a weakness that remains in the new act.  The great unexplored territory is, as noted, whether a claim could be made that there should be some sort of control over types of analytical techniques used when analysing big data sets/predictive analytics.

A further point of some significance for the IPA regime is the Court’s approach to the use of related data which, despite some changes in terminology, is the same as in RIPA. It seems from the Court’s analysis that the selection for examination of such data for purposes beyond determining whether the individual is in the UK or Ireland requires greater oversight than the regime currently provides.   The Court also refrained from discussing (perhaps because the Government did not raise it) the question of where the interception takes place (para 271). This issue remains for another day.

Article 8 and Data Sharing

As regards the data-sharing regime, there will no doubt be disappointment that the Court accepted the regime. It could be said that the judgment thereby renders data sharing acceptable, especially given its emphasis on the global nature of terrorism and the States’ duties to protect security. The judgment is perhaps significant for what it did not cover. It carefully limited the topic on which it ruled, the receipt of intelligence and did not discuss the sharing of intelligence gather by the British services and shared overseas. There is also an assumption here that a person outside the UK who data is shared with the British services will still have convention rights when the information is shared/processed in the UK.  The issue of where the intrusion happens may become more complex in other situations – perhaps in the context of equipment interference warrants.

Article 8 and Bulk Communications Data

The Court’s analysis of the bulk communications data regime is in some ways disappointing as it does not deal directly with the substance. Instead the regime falls because there is no basis in law, despite the existing statutory framework (whether we consider RIPA or IPA). Simply put, the domestic courts have recognised that the statute must be disapplied for non-compliance with the requirements of EU law, and the Strasbourg Court therefore concluded that the regime “cannot be in accordance with the law within the meaning of Article 8” (para 467).  The point worth emphasising here is that the Court based its conclusion on its understanding of domestic law, not by relying directly on EU law.  It certainly has not gone as far as adopting the reasoning of the Court of Justice in the data retention cases.

Article 10

Finally, a relative novelty in Big Brother Watch is the Article 10 freedom of expression arguments (the Court not having considered the issue since Weber).  Note that the Court relied on its reasoning under 8(2) with regard to the assessment of 10(2): the considerations seem therefore to be the same, implicitly introducing the Weber criteria and the Zakharov additional considerations into freedom of expression.  Presumably this jurisprudence will not be relied on save in the specific context of the impact of secret surveillance on the media. While the Court did not state that journalistic communications would be entirely off-limits (similarly lawyers’ conversations are not sacrosanct: Kopp), there are a couple of points that will have implications for the IPA. In relation to bulk interception there were concerns about the lack of safeguards in relation to the selection of material (para 493), an area where the Court had already found the regime to be weak. Further, the IPA provides safeguards that are limited to applications that have the purpose of targetting journalists’ communications; the Court here noted that the protections did not “apply in every case where there is a request for the communications data of a journalist or where such collateral intrusion is likely” (para 499). This lack, adding to the general failings of the regime (above), meant that the regime could not be considered in accordance with the law for the purposes of Article 10(2).

Barnard & Peers: chapter 9

JHA4: chapter II:7

Photo credit: MiniPress news

Analysis of the ECtHR judgment in Big Brother Watch: part 1

Lorna Woods, Professor of Internet Law, University of Essex

This chamber judgment is the latest in a line of cases that deal with secret surveillance, a topic which seems to be appearing increasingly frequently in a post-Snowden world. This judgment is substantial (over 200 pages in length) and deals with three cases challenging the UK’s now mainly repealed Regulation of Investigatory Powers Act 2000 (RIPA) as regards to interception of communications in bulk, the acquisition of communications data and the sharing of intercepted communications and communications data between the UK and the United States of America: Big Brother Watch (app no. 58170/13), Bureau of Investigative Journalism and Alice Ross (app no. 62322/14) and 10 Human Rights Organisations (app. no. 24960/15).  It follows in the steps of the Liberty case (app no. 58243/00) against the previous regime and, given the similarity between some aspects of RIPA and the Investigatory Powers Act 2016 (IPA), might have relevance for our understanding of that act too. In addition to questions about Article 8, the judgment also deals with the impact of surveillance on freedom of speech under Article 10 ECHR. 

This post is the first of two on the judgment. It outlines the issues and the Court’s reasoning. The second comments on the judgment. Given the size of the judgment that will be just an initial reaction to the judgment – there will, no doubt, be much more to be said.

Factual Background

The applicants in the three cases are organisations and individuals who are either journalists or are active in campaigning on civil liberties issues. Their challenges to RIPA were triggered by the information revealed by Edward Snowden which made apparent the existence of surveillance and intelligence sharing programmes operated by the intelligence services of the United States and the United Kingdom.  Specifically, they believed that the nature of their activities meant that their electronic communications and/or communications data were likely to have been intercepted or obtained by the UK intelligence services relying on the regime found in RIPA.  Three areas of problems were highlighted:

-          bulk interception of ‘external’ communications under s. 8(4), as well as connected communications data;

-          the sharing process whereby the British agencies received data collected by the US; and

-          access to communications data under Part II RIPA.

In all instances the applicants thought that the protection against abuse were insufficient and that the regimes were neither lawful nor necessary in a democratic society.

Only the applicants in the third case brought an action before the Investigatory Powers Tribunal (IPT), alleging violations of Articles 8, 10 and 14 of the Convention.  Although the IPT found two ‘technical violations’ of the Convention, in the main it regarded the challenged regime to be in accordance with the requirements of Article 8, notably the requirements set down in Weber and Saravia (app no. 54934/00).

Judgment

The first issue concerned exhaustion of domestic remedies, in particular the failure to bring a case before the IPT.  The applicants argued that in the light of the ECtHR’s own ruling in Kennedy (app no. 26839/05), the IPT would not be an effective remedy and they were therefore not obliged so to do.  The Court agreed with this assessment of its case law in general terms, but now thought that recent practice showed that the IPT now constituted a viable route for a remedy, especially given the response of the UK government to its findings. Nonetheless, the Court accepted that, at the time the applicants in the first and second of the joined cases introduced their applications, they could not be faulted for having relied on Kennedy as authority for the proposition that the IPT was not an effective remedy for a complaint about the general Convention compliance of a surveillance regime. It therefore found that there existed special circumstances absolving those applicants from the requirement that they first bring their complaints to the IPT.

The Court first considered the position under s. 8(4) RIPA and whether it met the tests of legitimate purpose, lawful and necessary in a democratic society. In doing so, it noted that there was jurisprudence in this field but that in previous jurisprudence the Court had distinguished between different types of secret surveillance, finding that there different levels of intrusion depending on the data collected, and also different rules depending on whether national security was in issue.  The Court sought to synthesise the principles, suggesting that the 6 principles established in Weber – to ensure the lawfulness of any such regime - were the starting point, though they might need to be differently applied depending on the type of surveillance. These need not be updated to take account of changes in technology.  These minima are:

-          the nature of offences which might give rise to an interception order;

-          definition of the categories of people liable to have their communications intercepted;

-          a limit on the duration of interception;

-          the procedure to be followed for examining, using and storing the data obtained;

-          the precautions to be taken when communicating the data to other parties; and

-          the circumstances in which intercepted data may or must be erased or destroyed.

In the context of national security it also recognised the gloss added by the Grand Chamber in Zakharov (app no. 47143/06) the review mechanisms and remedies should also be taken into account. The Court noted that the nature of secret surveillance was such that until an individual were to be notified about such surveillance, that individual would not be in a position to exercise their rights. In this, the safeguards against abuse assumed high importance; moreover, the role or rights to remedies was important for protection after notification.

Looking at the situation in issue, the Court started by making the general point that operating a bulk interception scheme was not in itself in violation of the Convention. Governments would have “a wide margin of appreciation” in deciding what kind of surveillance scheme was necessary to protect national security.  The operation of the system would still however need to be checked to ensure that there were sufficient safeguards against abuse.  The applicants argued that the fact that there was no requirement for prior judicial authorization was a fatal flaw in the scheme. 

The Court agreed judicial authorisation was an important safeguard, perhaps even “best practice”, but by itself it was neither necessary nor sufficient to ensure compliance with Article 8. It was unnecessary because of the ex post controls available in the British system. Looking to Zakharov, the Court recognised that a formal requirement was insufficient – the requirement there had not prevented bad practice. The Court then held that regard had to be had to the actual operation of the system of interception, including the checks and balances on the exercise of power, and the existence or absence of any evidence of actual abuse.

In assessing the scheme the Court took the law at the time of its consideration of the claims; this meant that the Court considered the matter after the impact of the Snowden leak and some of the consequent changes to practice, including revisions to relevant codes accompanying RIPA, as well as statements in Parliament (such as the clarification as to what an external communication was – it includes Google searches, tweets and Facebook posts from by users in the UK). 

The Court took the view that, as regards the first Weber requirement, the law was clear as to the circumstances in which and the conditions on which a section 8(4) warrant might be issued. There was no evidence to suggest that the Secretary of State was authorising warrants without due and proper consideration. The authorisation procedure was subject to independent oversight and the IPT had extensive jurisdiction to examine any complaint of unlawful interception. Following its analysis in Kennedy, the Court accepted that the provisions on the duration and renewal of interception warrants, the provisions relating to the storing, accessing, examining and using intercepted data, the provisions on the procedure to be followed for communicating the intercepted data to other parties and the provisions on the erasure and destruction of intercept material provided adequate safeguards against abuse.

There were some weaknesses in the system.  While in the opinion of the Court the selectors (e.g. email address) and search criteria used to narrow down the mass of information collected to that which would be read by analysts did not need to be made public or be listed in the warrant ordering interception, the choice of search criteria and selectors should be subject to independent oversight (para 387); indeed the Court expressed some concerned about the cables (‘bearers’) selected for tapping. Here the ex post review by the Interception of Communications Commissioner (now replaced under the IPA by the Investigatory Powers Commissioner) and, should an application be made to it, the IPT were held not to be ‘sufficiently robust to provide adequate guarantees against abuse’ (para 347).

The Court also expressed concern about communications data.  This is often summarised as who, where, when but this underplays the significance of the data collected.  Indeed, here the Court rejected the Government’s argument that communications data was necessarily less sensitive than the content of the communications (para 357). The Court explained the position thus:

... the content of an electronic communication might be encrypted and, even if it were decrypted, might not reveal anything of note about the sender or recipient. The related communications data, on the other hand, could reveal the identities and geographic location of the sender and recipient and the equipment through which the communication was transmitted. In bulk, the degree of intrusion is magnified, since the patterns that will emerge could be capable of painting an intimate picture of a person through the mapping of social networks, location tracking, Internet browsing tracking, mapping of communication patterns, and insight into who a person interacted with. (para 356)

In the context of s 8(4), communications data associated with the communications intercepted is also covered by the warrant but crucially some of the limitations (e.g. that the communication must be external) do not apply to this data.  The Court concluded that the unjustified lower level of protection meant that there was a violation in this regard.

The Court then considered the data sharing arrangements, the first time that the Court had been asked to consider the matter. It noted to start with the many ways in which this issue might arise.  The interference in the case had not been occasioned by the interception of communications itself but lay in the receipt of the intercepted material and subsequent storage, examination and use by the intelligence services.  It confined its judgment to the specific argument brought before it: the breach occasioned by the British services receiving American intelligence.  The applicants argued that this indirect access should be treated the same way as direct surveillance by the British services.  The Court commented that:

"[a]s with any regime which provides for the acquisition of surveillance material, the regime for the obtaining of such material from foreign Governments must be 'in accordance with the law'..., it must be proportionate to the legitimate aim pursued, and there must exist adequate and effective safeguards against abuse .… In particular, the procedures for supervising the ordering and implementation of the measures in question must be such as to keep the 'interference' to what is 'necessary in a democratic society'" (para 422).

The Court also recognised the danger of States using intelligence sharing as a means to circumvent controls (para 423).  It nonetheless accepted that the safeguards need not look identical in this context as in that of direct surveillance. Applying the principles to the facts, the Court found unanimously that there had been no violation. In particular, it accepted that the lawful requirement had been satisfied although the basis for the data sharing was an internal agreement which were disclosed only during proceedings before the IPT and subsequently incorporated into the Interception of Communications Code (para 426). The Code links the circumstances in which intelligence may be requested to the issuing of s. 8(1) or s. 8(4) warrants, thus circumscribing the circumstances in which such requests may arise and indirectly imposes supervision via sign-off by the Secretary of State and review by the ISC and the Interception of Communications Commissioner. 

The Court applied its assessment of the Code’s safeguards in relation to s. 8(4) warrants (in paras 361-363) here. Its assessment of the proportionality of information sharing was influenced by the threat of international terrorism and the global nature of terror networks necessitating information flow. In the Court’s view, ‘this “information flow” was embedded into a legislative context providing considerable safeguards against abuse’ so that ‘the resulting interference was to that which was “necessary in a democratic society”’ (para 446) and it considered that the threshold set by the Venice Commission – that the material transferred should only be able to be searched if all material requirements of a national search were fulfilled – were met (para 447). 

The next issue was the final question relating to Article 8.  It concerned Chapter II of RIPA which allows specified authorities to access communications data held by communications service providers (CSPs).  As noted, communications data is not necessarily less intrusive than content.  The Court did not however go into detail on this here, although it noted that real time surveillance is more intrusive that the transfer of records of existing data (citing Ben Faiza (app no. 31446/12)). It re-iterated that the same three criteria apply: lawfulness, legitimate aim and necessary in a democratic society.  The Court focussed on the lawfulness of the rules, referring to the position under EU law – notably Digital Rights Ireland (Case C-293/12 and C-594/12) and Watson (Case C-698/15) - which requires that any regime permitting access to data retained by CSPs was only to be for the purpose of combating “serious crime”, and that such access be subject to prior review by a court or independent administrative body. RIPA -although it provided a clear basis for action on the face of it - did not comply with this requirement and was therefore was not compliant with domestic law requirements (para 467).

A further issue arose in the Bureau of Investigative Journalism (BIJ) complaint. There, BIJ (a newsgathering organisation) and a journalist (Ross) raised the issue of interference with confidential journalistic material occasioned by the operation of both the section 8(4) and the Chapter II regimes.  While the Court has emphasised the importance of protection of journalists’ sources, its case law has distinguished between court orders for disclosure and searches carried out by the authorities to obtain this information – that latter is more intrusive. Further, the Court also distinguished between attempts to reveal sources and investigations into the commission of crimes. So the importance of source confidentiality is not an automatic trump card. The Court noted that the s. 8(4) regime was not aimed at monitoring journalists or uncovering journalistic sources.  The authorities would often only know that a journalist’s communications had been intercepted when examining the intercepted communications. Following Weber, this in itself could not be characterised as a particularly serious interference with freedom of expression. Nonetheless, where those communications were selected, the concerns would increase and safeguards would be required, especially as regards the need to protect confidentiality. In this context, concerns expressed in relation to the s. 8(4) regime ran through to Article 10 concerns. The Court emphasised that:

... there are no [public] requirements...either circumscribing the intelligence services' power to search for confidential journalistic or other material (for example, by using a journalist's email address as a selector), or requiring analysts, in selecting material for examination, to give any particular consideration to whether such material is or may be involved. (para 493)

This blanket power without any “above the water” arrangements limiting the intelligence services’ ability to search and examine such material constituted a violation of Article 10.

As regards the Chapter II regime, while there were some protections in place for journalistic sources, the Court determined that this was limited. They applied only where the purpose of the application was to determine a source. They would not apply in every case where there was a request for the communications data of a journalist, or where such collateral intrusion was likely.  Given this and the fact that access was not limited to ‘serious crime’, the Court found a violation of Article 10.

The Court rejected complaints under Article 6 as well as Article 14 combined with Articles 8 and 10 of the Convention as manifestly ill-founded.

The judgment was not unanimous. Judge Koskelo, joined by Judge Turkovic, disagreed with some points of the reasoning of the majority and particularly the appropriateness of relying on old case law in a context following a technological ‘sea change’ in which people’s lives are more thoroughly exposed to view.  Judges Pardalos and Eicke did not agree that the applicants in the first and second case should have been absolved from the requirement to exhaust domestic remedies, nor – in the light of the recent chamber judgment in Centrum For Rattvisa (app no. 35252/08) – that there had been a violation of Article 8 in relation to s. 8(4) warrants.

Barnard & Peers: chapter 9

Photo credit: Journalism, Media and Culture