secreto de las comunicaciones

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On September 13, the European Court of Human Rights (ECHR) found that the United Kingdom (Judgment: Big Brother Watch and Others versus the United Kingdom) had infringed provisions of the European Convention on Human Rights (the “Convention”) by its bulk interception of communications.

Following a leak by a former employee of the US National Security Agency, a group of journalists and associations for the defense of civil rights brought a series of actions against the intelligence services of the United Kingdom and the United States of America. The former employee alleged that these services carried out surveillance of communications and shared surveillance programs.

Based on that information, the complainants claimed that application of the British Regulation of Investigatory Powers Act 2000 had infringed their rights to private communications (article 8 Convention), freedom of expression and the press (article 10 Convention), and fair trial (article 6 Convention).

Concerning infringement of the right to private communications, the court held that the act in question did not (i) stipulate the criteria to be used when filtering and selecting communications for examination, and (ii) provide for sufficient independent oversight of the communications intercepted, thus concluding that that right had been infringed.

The complainants also affirmed that public authorities had been empowered to ask communications service providers for overly broad access to data. In its ruling, the court relied on European legislation stipulating that access of that kind can only be exercised to combat serious crime and in all cases with the authorization of a court or independent administrative body. Based on that, the court ruled that the British act did not provide sufficient guarantees and infringed article 8 Convention.

The complainants also claimed that the act in question did not sufficiently protect their sources or all the material they considered to be confidential. The court ruled that the act could curtail freedom of the press by not clearly specifying when certain information could be examined or what was to happen if it was confidential. It added that the ultimate intent of the act was to disclose the identity of the source and that there were no special rules for investigating criminal conduct. Therefore, it accepted the complaint on this point.

Finally, the court concluded that the restrictions in the act were necessary and proportional, serving to guarantee the effectiveness of the surveillance regime for combating terrorism and serious crime; thus, it dismissed the complainants’ claim alleging infringement of their right to fair trial.

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Jorge Monclús