Surveillance and the Right to Privacy: Is an ‘Effective Remedy’ Possible?

Murphy, Maria Helen

doi:10.1007/978-3-319-24016-9_12

Surveillance and the Right to Privacy: Is an ‘Effective Remedy’ Possible?

Maria Helen Murphy³

Chapter
First Online: 13 December 2015

992 Accesses
2 Citations

Abstract

Privacy—the right most directly implicated in any discussion of surveillance—is often identified solely as a benefit to the individual, weighing against general social goods such as security. The imperceptibility of both the concept of privacy and the value of ‘national security’ favours the security side of the equation, as the threats of terrorism and organised crime loom large as omnipresent fears in a security conscious society. Recognising these challenges, recourse to an external—yet, legitimate—source of privacy protection is an attractive option. Accordingly, the European Convention on Human Rights (ECHR) is a crucial instrument of human rights protection in the area of surveillance. While Ireland has avoided direct scrutiny of its surveillance regime from the ECtHR, the jurisprudence of the Strasbourg Court has played a clear role in the formulation of Irish surveillance legislation. In spite of this influence, there is cause to suspect that the legislative reforms may not add up to effective protection of the right to respect for private life as guaranteed by Article 8 of the Convention. While Article 8 is the substantive article most relevant in the surveillance context, the right to an effective remedy, as provided for in Article 13, must also be considered. The specific function of Article 13 is to ensure the ‘availability at national level of a remedy to enforce the substance of the Convention rights and freedoms’. The inherently secretive nature of surveillance presents a considerable obstacle to the justiciability of Article 8 rights in the surveillance context. This chapter considers how the challenges to providing an effective remedy in the surveillance context can be resolved and uses the Criminal Justice (Surveillance) Act 2009 (Surveillance Act) as a case study in order to evaluate how the Oireachtas has attempted to meet the standard for an effective remedy in this complex context.

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Notes

1.
See for example, Solove (2008), p. 10.
2.
Rotaru v Romania [2000] ECHR 192, 67.
3.
Wildhaber (2005), p. 9. Available at: http://www.echr.coe.int/NR/rdonlyres/82597AB6-124F-48D5-8BBB-792899EB0C6A/0/AmeliorationsRecours_EN.pdf.
4.
Article 41 ECHR.
5.
Buergenthal (1966), p. 59.
6.
Lukenda v Slovenia [2005] ECHR 682, 94–95 [hereinafter, Lukenda].
7.
Lukenda, 94–95.
8.
Lukenda, 94–95.
9.
Chahal v The United Kingdom (1996) 23 EHRR 413, 145 [hereinafter, Chahal]. See Vilvarajah v The United Kingdom (1991) 14 EHRR 248, 122 [hereinafter, Vilvarajah].
10.
For example, Khan v The United Kingdom (2000) 31 EHRR 45, 44.
11.
Smith and Grady v The United Kingdom [1999] ECHR 72, 135.
12.
McFarlane v Ireland [2010] ECHR 1272, 108 [hereinafter, McFarlane]; Ihan v Turkey [2000] ECHR 354, 97. The ECtHR has also called for this effectiveness in practice requirement in the national security context. Al Nashif v Bulgaria [2002] ECHR 502, 136.
13.
McFarlane, 108; Paulino Tomás v Portugal [2003] 58698/00 ECHR.
14.
Shelton (1999), p. 23.
15.
McFarlane, 108.
16.
Klass v Germany (1979–80) 2 EHRR 214, 69 [hereinafter, Klass]. Referenced in Leander v Sweden (1987) 9 EHRR 433, 78 [hereinafter, Leander]; Mersch v Luxembourg [1985] 10439/83, 10440/83, 10441/83, 10452/83, 10452/83, 10512/83 and 10513/83 (joined) 34, 118 [hereinafter, Mersch]; Ekimdzhiev v Bulgaria [2007] ECHR 533, 99 [hereinafter, Ekimdzhiev].
17.
Klass, 70.
18.
Z v The United Kingdom (2002) 34 EHRR 97, 110.
19.
According to the Court: ‘The rule of law implies, inter alia, that an interference by the executive authorities with an individual’s rights should be subject to an effective control which should normally be assured by the judiciary, at least in the last resort, judicial control offering the best guarantees of independence, impartiality and a proper procedure’. Klass, 55, 67.
20.
Klass, 67.
21.
Klass, 67.
22.
Harris et al. (2009), p. 565. According to the Committee of Ministers, while Article 13 does not necessitate that the remedy is administered by a court of law, the relevant authority must be ‘identified and composed of members who are impartial and who enjoy safeguards of independence’. Committee of Ministers of the Council of Europe, Recommendation R (98) 13 (18 September 1998). See Eckes (2009), p. 182.
23.
van Dijk et al. (2006), p. 1007; Mowbray (2004), pp. 32–33.
24.
Klass, 67.
25.
Mowbray (2004), p. 207, as cited in Helfer (2008), pp. 125–159.
26.
Harris et al. (2009), p. 565.
27.
Silver v The United Kingdom [1983] ECHR 5; PG and JH v The United Kingdom [2001] ECHR 550.
28.
Cameron (2000), p. 162.
29.
Klass, 57.
30.
Klass, 58.
31.
Klass, 68.
32.
Ibid.
33.
Ekimdzhiev, 100.
34.
Ibid.
35.
Ibid. This does not, of course, mean that it is impossible to provide a limited remedy at this stage. An example of a possible limited remedy is provided in Klass, where individuals believing themselves to be under surveillance could complain to the commission overseeing the system of secret surveillance and apply to the German Federal Constitutional Court in exceptional cases. See Klass, 79.
36.
Committee of Ministers of the Council of Europe, Recommendation R (87) 15 (17 September 1987). See de Hert and Boehm (2012), p. 20.
37.
Burke (1981), p. 1113 citing Klass, 69, 71.
38.
Collins (1993), p. 31.
39.
As part of an overall assessment of the safeguards provided under Article 8, the Court concluded that insufficient guarantees against abuse were provided for in the Bulgarian legislation Ekimdzhiev, 93. Under the Article 13 analysis, the Court concluded that the Bulgarian law did not provide an effective remedy. Ekimdzhiev, 102–103.
40.
Cameron has pointed out that there is ‘a considerable degree of overlap between the adequacy of the system of safeguards and the adequacy of the grievance procedure provided for the individual’. Cameron (1986), p. 143. Consideration of notification under Article 8 has been defended on the grounds that the Article 8 safeguard of judicial control is also ‘[i]nextricably linked’ to the issue of subsequent notification. Klass, 57. In Ekimdzhiev, the ECtHR considered the question of notification under both Article 8 and Article 13.
41.
Ekimdzhiev, 101.
42.
Ibid.
43.
No information was provided to individuals on applications for a declaratory judgment or an action for damages.
44.
Ekimdzhiev, 102–103.
45.
Notification was required ‘as soon as notification can be made without jeopardising the purpose of the measure’.
46.
de Hert and Boehm (2012), p. 30.
47.
Kennedy v The United Kingdom [2010] ECHR 682, 196. De Hert suggests that the remedial system examined in Kennedy provided an alternative means to an effective remedy in lieu of subsequent notification. de Hert and Boehm (2012), p. 32.
48.
Kennedy, 75. The ECtHR also noted the various powers of the IPT including access to relevant information, the power to annul interception orders, require destruction of secret material and order compensation. Kennedy, 167.
49.
Including those discussed in Klass.
50.
Kennedy, 167.
51.
Ferguson and Wadham (2000), p. 106.
52.
Having determined that the extensive jurisdiction of the IPT compensated for the lack of notification, the ECtHR then chose to take regard of this conclusion in its Article 13 analysis, and declined to engage in an in-depth consideration of the Article 13 issues. Kennedy, 167, 196.
53.
Kennedy, 167.
54.
Cameron (2000), p. 38.
55.
Klass, 71.
56.
Khan v The United Kingdom [2000] Crim LR 684, 24.
57.
A ‘surveillance device’ is ‘an apparatus designed or adapted for use in surveillance, but does not include—(a) an apparatus designed to enhance visual acuity or night vision, to the extent to which it is not used to make a recording of any person who, or any place or thing that, is being monitored or observed, (b) a CCTV within the meaning of section 38 of An Garda Síochána Act 2005, or (c) a camera, to the extent to which it is used to take photographs.’ Surveillance Act, s. 1.
58.
Surveillance Act, s. 1.
59.
Explanatory memorandum, Criminal Justice (Surveillance) Bill, 2009.
60.
A ‘superior officer’ is ‘(a) in the case of the Garda Síochána, a member of the Garda Síochána not below the rank of superintendent; (b) in the case of the Defence Forces, a member of the Defence Forces not below the rank of colonel; and (c) in the case of the Revenue Commissioners, an officer of the Revenue Commissioners not below the rank of principal officer.’ Surveillance Act, s. 1.
61.
Surveillance Act, s. 4(1)(2)(3). Section 4 of the Surveillance Act describes three categories of circumstances sufficient to justify an application for judicial authorisation. The first category is where the Superior Officer of An Garda Síochána, the Defence Forces, or Revenue Commissioners has reasonable grounds for believing that such surveillance is necessary for determining whether, or under what circumstances, an arrestable offence has been committed, or for obtaining evidence for the purposes of court proceedings in relation to the offence. Surveillance Act, s. 4(a). The second category is where the surveillance in question is necessary for the prevention of an arrestable offence. Surveillance Act, s. 4(b). The third category permits authorisation on the grounds that the surveillance is necessary for the maintenance of the security of the State. Gillane criticised the general application, pointing out that arrestable ‘essentially means just about any offence beyond very minor public order matters and offences of that class.’ Gillane (2009). Available at: http://www.dppireland.ie/filestore/documents/10th_ANPC_-_Sean_Gillane_BL_-_Paper.pdf.
62.
As attested to by the Superior Officer under oath. The Garda who applies must believe on reasonable grounds that the surveillance is part of an investigation or prevention of an arrestable offence or is necessary for national security reasons. Surveillance Act, s. 4(1)(a)(b)(c). The Revenue Commissioners equivalent is described in Surveillance Act, s. 4(3)(a)(b).
63.
In cases of urgency, surveillance will be possible without judicial authorisation for a period of up to 72 h, subject to some conditions.
64.
Surveillance Act, s. 5(6).
65.
Surveillance Act, s. 5(1)(a).
66.
Surveillance Act, s. 5(8); Surveillance Act, s. 6(1).
67.
Interception Act, s. 9. Dáil Debates 29^th April 2009 col 338.
68.
Surveillance Act, s. 11(12).
69.
LRC (1996) 130. Interception Act, s. 9(2)(a)(b).
70.
Interception Act, s. 9(2)(c).
71.
Surveillance Act, s. 11(1).
72.
Surveillance Act, s. 11(3).
73.
Surveillance Act, s. 11(4).
74.
‘Material’ is undefined in the Act.
75.
Surveillance Act, s. 11 (5)(a)(b)(d). The Designated Judge is discussed further in the following section.
76.
Surveillance Act, s. 11(6).
77.
Surveillance Act, s. 11(7)(8).
78.
Klass, 67.
79.
Ekimdzhiev, 102.
80.
Interception Act, s. 9(5)(c).
81.
Interception Act, s. 9(12).
82.
In Segerstedt-Wiberg, the ECtHR praised the power granted to the Chancellor of Justice to award compensation Segerstedt-Wiberg v Sweden [2006] ECHR 597, 118. The ECtHR did not find, however, that the flaws in the system of remedies were sufficiently offset by the potential for seeking compensation. Segerstedt-Wiberg, 121.
83.
Ekimdzhiev, 90; Klass, 58; Leander, 66.
84.
Irish Human Rights Commission (2009), p. 9. Available at: http://www.ihrc.ie/legislationandpolicy/legislativeobse.html.
85.
Ibid.
86.
Lambert v France [1998] ECHR 75. An individual is entitled to respect for their private life—and to challenge interferences with their rights—irrespective of whether the interception was carried out on the phone line of a different person. Lambert, 21, 34.
87.
Lambert, 38.
88.
Whelan (2010), p. 4. Whelan criticises the fact that the complaints ‘allows you to find out if a disclosure request has been made about you only by making a request (if you first believe that you might be the subject of an authorisation or approval!) but you will only be told if an approval or authorisation was made if it turns out that there has been a contravention and the Referee decides it does not offend the public interest to tell you.’
89.
Kennedy, 167. In Kennedy, the issue of where notification was primarily considered as an issue under the Article 8 analysis.
90.
RIPA, s. 68(4)(a).
91.
RIPA, s. 68(4)(b). The IPT is also governed by the Investigatory Powers Tribunal Rules, 2000.
92.
Surveillance Act, s. 12(4); The Designated Judge under the Surveillance Act is also granted extensive access to official documents Surveillance Act, s. 8(2)(b) 8(5).
93.
Surveillance Act, s. 12.
94.
Whelan (2010), p. 4. One annual report is the minimum requirement under the Surveillance Act.
95.
Gillespie (2009), p. 75.
96.
Surveillance Act, s. 12(1).
97.
The first three reports were delivered by the late Mr Justice Kevin Feeney. The current Designated Judge is Michael Peart.
98.
Report of the Designated Judge pursuant to Section 12 of the Criminal Justice (Surveillance) Act 2009 (2009/2010) 12. Available at: http://www.scribd.com/doc/98008526/Covert-Surveillance-Report-2009-2010; Report of the Designated Judge pursuant to Section 12 of the Criminal Justice (Surveillance) Act 2009 (2010/2011) 10. Available at: http://www.scribd.com/doc/98008741/Covert-Surveillance-Report-2010-2011.
99.
Shelton (1999), p. 52.
100.
Schwartz (2003–2004), p. 1252.
101.
See EPIC (2009).
102.
2010/2011 Report.
103.
2009/2010 Report, 26. Each Defence Force request had gone through the general District Court authorisation procedure and each application had been successful.
104.
2010/2011 Report, 16. He noted that there had been a ‘small increase’. In the 2009/2010 Report, the Designated Judge reviewed one third of An Garda Síochána authorisations on a random basis. 2009/2010 Report, 15. The Designated Judge found that the cases reviewed had involved appropriate uses of the Surveillance Act and had been used in such matters as the delivery of controlled drugs and investigations of crimes of serious violence against organised criminal or subversive groups. 2009/2010 Report, 15. In the 2010/2011 review, the Designated Judge adopted a different approach and discussed each case with senior officers from An Garda Síochána. The Designated Judge found that the documentation confirmed all the requirements. 2010/2011 Report, 16.
105.
2009/2010 Report, 20. In the 2010/2011 Report, the Designated Judge merely stated that there was ‘a number’ of tracking device approvals granted.
106.
2009/2010 Report, 17.
107.
2009/2010 Report, 19.
108.
The Report of the Designated Judge pursuant to Section 12 of the Criminal Justice (Surveillance) Act 2009 (2013/2014) 5 and 13.
109.
Reid (2011), p. 712.
110.
Helfer (2008), p. 144.
111.
For example, Scordino v Germany (2007) 45 EHRR 7, 183.
112.
Helfer (2008), p. 146.
113.
Harris et al. (2009), p. 575.
114.
Ekimdzhiev, 93–94. In respect of the requirement for particular remedies to address specific wrongs, in Segerstedt-Wiberg the ECtHR both praised the Swedish system for the provision of compensation and potential judicial appeal, and severely criticised the system for the absence of any remedies offering the opportunity to rectify or erase the stored data. Segerstedt-Wiberg, 119–122.
115.
Dissenting opinion of Judge Ryssdal in Leander, 5.

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Department of Law, Maynooth University, Co. Kildare, Ireland
Maria Helen Murphy

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Department of Law and Criminology, Edge Hill University, Ormskirk, Lancashire, United Kingdom
Alice Diver
School of Law, Northumbria University, Newcastle, United Kingdom
Jacinta Miller

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Murphy, M.H. (2016). Surveillance and the Right to Privacy: Is an ‘Effective Remedy’ Possible?. In: Diver, A., Miller, J. (eds) Justiciability of Human Rights Law in Domestic Jurisdictions. Springer, Cham. https://doi.org/10.1007/978-3-319-24016-9_12

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