Data Protection and Privacy: European and US Perspectives — Balancing the rights of privacy and the freedom of expression (Part V)

Identifying the scope of privacy in reference to the grounds on which it can be restricted.

National security and Public order

National security and public order are provided for under Art 8 ECHR as justification to State interference with privacy rights ‘in accordance with the law’. [60] Such interference is permitted constituting ‘legitimate aims’ deemed ‘necessary in a democratic society’. [61] Similarly, as previously illustrated, Art 17 ICCPR reiterates that ‘no one should be subjected to arbitrary or unlawful interference’, however no implicit right of interference is provided for in this provision with regards to maintaining national security and public order. [62]

Considering the perception that State bodies have in previous cases upheld interference only for a ‘legitimate aim’, the Human Rights Convention have rarely countered such intrusion on the right to privacy, but have acknowledged ‘the risk that a system of secret surveillance in the struggle against terrorism, espionage and for the protection of national security may undermine or even destroy democracy under the cloak of defending it.’ [63] In light of this the Court obliged that there must exist ‘adequate and effective guarantees against abuse.’ [64]

Considering such ‘adequate and effective guarantees against abuse’, in Weber and Saravia v Germany, it was held that due regard be afforded under the ‘nature, scope and duration of the measures, the grounds required for ordering them, the authorities competent to authorise, carry out and supervise them and the kind of remedy provided by the national law’. [65] Therefore, this ascertains that the Court must access a degree of proportionality, balancing the particular details of a certain case. In Peck v the UK, the court held that the margin of appreciation in exercising surveillance measures depends on ‘the nature and seriousness of the interests at stake and the gravity of the interference’. [66]

This view, as previously mentioned was reiterated in Leander v Sweden. [67] In Klass v Germany, it was expressed that certain surveillance measures were necessary to maintain the public’s interests of national security and public order, citing that ‘the Court, in its appreciation of the scope of the protection offered by Article 8, cannot but take judicial notice of two important facts. The first consists of the technical advances made in the means of espionage and, correspondingly, of surveillance; the second is the development of terrorism in Europe in recent years.

Democratic societies nowadays find themselves threatened by highly sophisticated forms of espionage and by terrorism, with the result that the State must be able, in order effectively to counter such threats, to undertake the secret surveillance of subversive elements operating within its jurisdiction.’ [68] Therefore highlighting that the practice of ‘secret surveillance of subversive elements’ may be a restriction on a citizen’s right to privacy.

60 Art 8(2) ECHR (reference n.55)

61 Id.

62 Art. 17 ICCPR

63 Elisabeth Fura and Mark Klamberg, ‘The Chilling Effect of Counter-Terrorism Measures: A Comparative Analysis of Electronic Surveillance Laws in Europe and the USA’ in Freedom of Expression: Essays in honour of Nicolas Bratza, President of the European Court of Human Rights 2012, 463.

64 Id. Relevant in cases of Klass v Germany, at 49–50; Leander v. Sweden, 1987, at 60; Weber and Saravia v.

Germany, 2006 at 106; 116–118.

65 (2008) 46 EHRR 5. at 106; referencing Klass v Germany.

66 App no 44647/98 (ECtHR, 28 January 2003) at 77.

67 at footnote 59.

68 Klass Ors v Germany, at 48.