Centrum för rättvisa v Sweden
The bulk interception of communications is not in itself incompatible with article 8, but must be subject to end to end safeguards, and the Swedish regime breached article 8 because some of those safeguards were missing.
Facts
Centrum för rättvisa, a Swedish public interest law firm, complained that Swedish legislation on signals intelligence, which allowed the National Defence Radio Establishment to intercept communications in bulk, breached its right to respect for its private life and correspondence under article 8 of the European Convention. The firm communicated with clients and others abroad, and believed that its communications were at risk of being intercepted. The Chamber found no violation, and the case was referred to the Grand Chamber, which gave judgment on the same day as in Big Brother Watch v United Kingdom.
Legal principle
The Grand Chamber held that a bulk interception regime is not of itself in breach of article 8, because states have a wide margin of appreciation in deciding whether to operate such a regime to protect national security, but that the regime must be subject to end to end safeguards. These require that the domestic assessment of the necessity and proportionality of the measures should be made at each stage of the process, that bulk interception should be subject to independent authorisation at the outset, and that the operation should be subject to supervision and independent ex post facto review. The Swedish regime breached article 8, because there was no clear rule on the destruction of intercepted material which did not contain personal data, no requirement to consider the privacy interests of individuals when sharing intelligence with foreign partners, and no effective ex post facto review.
Related cases on international transfers, surveillance and data retention
- Big Brother Watch v United Kingdom (2021) Application no 58170/13
- Data Protection Commissioner v Facebook Ireland Ltd and Maximillian Schrems (2020) Case C-311/18
- Digital Rights Ireland Ltd v Minister for Communications, Marine and Natural Resources Joined Cases C-293/12 and C-594/12, EU:C:2014:238
- La Quadrature du Net v Premier ministre (2020) Joined Cases C-511/18, C-512/18 and C-520/18
- Privacy International v Secretary of State for Foreign and Commonwealth Affairs (2020) Case C-623/17
- R (Bridges) v Chief Constable of South Wales Police [2020] EWCA Civ 1058, [2020] 1 WLR 5037
- R (Catt) v Association of Chief Police Officers [2015] UKSC 9, [2015] AC 1065
- R (Liberty) v Secretary of State for the Home Department [2018] EWHC 975 (Admin)
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