(Still) Challenging mass interception from outside the UK: Wieder and Guarnieri v the UK
The European Court of Human Rights held the United Kingdom accountable for its digital spying even when that spying affects people outside of the UK’s borders. It was the first time the European Court pronounced on the matter of surveillance of electronic communications.
Two individuals applied to the European Court of Human Rights to challenge a UK tribunal’s refusal to investigate UK intelligence agencies’ interference with their right to privacy.
Court: European Court of Human Rights
Applications nos 64371/16 and 64407/16
In this case, Mr Weider and Mr Guarnieri, both researchers who work on information security and privacy, challenged the lack of access to redress mechanisms for alleged breaches to their rights to privacy and freedom of expression by UK intelligence agencies before the European Court of Human Rights.
Mr Weider and Mr Guarnieri complained that their communications were intercepted and accessed by the UK’s intelligence agencies - either through the UK’s bulk interception regime or under intelligence sharing arrangements with US intelligence agencies. The UK has already acknowledged that its historic bulk interception regime was unlawful.
In 2016, they submitted together with other applicants complaints to the UK’s Investigatory Power’s Tribunal (IPT) to find out whether the UK’s intelligence agencies had unlawfully obtained their information. They submitted these complaints as a result of a campaign PI ran to support members of the public, human rights defenders, researchers, and journalists in finding out whether their communications had been subjected to unlawful surveillance.
Because Mr Weider and Mr Guarnieri live outside the UK, the IPT refused to investigate their complaints, leaving them as a result without access to an appropriate redress mechanism. In its decision, the IPT read Article 1 of the European Convention of Human Rights as limiting the application of the ECHR to the territory of contracting member states. It found that the UK owed no obligations under Article 8 to claimants not residing in the UK; not even if the claimants communications had been intercepted or obtained within the UK’s territory.
The European Court of Human Rights on 12 September 2023 held that the “interference with the privacy of communications clearly takes place where those communications are intercepted, searched, examined and used and the resulting injury to the privacy rights of the sender and/or recipient will also take place there” (para 93) and given the UK intercepted, searched, examined or used the applicants’ communications within the United Kingdom’s territory, the interference with their right to privacy fell within the territorial jurisdiction of the United Kingdom.
You can find more information on the origins of the case and PI’s involvement here. The case was communicated on September 2021 and is still ongoing.