The Approach of the European Court of Human Rights to the Interception of Communications

Abstract

The European Court of Human Rights (ECtHR) has long been regarded as the ultimate guardian of data privacy in Europe, particularly in relation to secret surveillance. Since the 1970s, the ECtHR has developed an influential set of principles and safeguards governing the secret surveillance of communications by public authorities under its Article 8 ECHR case law.

These requirements have played a significant role in ratcheting up the data privacy standards of surveillance laws in European countries and within EU law. Recently, however, concerns have been expressed with respect to how the ECtHR has assessed whether the unprecedented capabilities now available to the State to monitor individuals are fit for purpose in the 21st century and whether the Article 8 ECHR standards should be updated.

This chapter sets out these key standards and their importance for the protection of privacy within the sphere of bulk surveillance. Finally, the analysis concludes by asking whether these recent concerns are justified and crucially whether the ECtHR should still be regarded as the ultimate guardian of data privacy in Europe.

Keywords: Article 8 ECHR; European human rights law; bulk surveillance; right to private life; legality; proportionality, Snowden revelations