Many cases regarding the right to private and family life concern the extent of protection afforded to the individual from state surveillance such as interference with correspondence, telephone tapping, secret video taping and searches.
Censorship of the correspondence of prisoners has generated numerous complaints before the supervisory bodies. The Human Rights Committee has in General Comment 16 provided some guidance as to what privacy of correspondence entails:
Integrity and confidentiality of correspondence should be guaranteed de jure and de facto. Correspondence should be delivered to the addressee without interception and without being opened or otherwise read. Surveillance, whether electronic or otherwise, interceptions of telephonic, telegraphic and other forms of communication, wire-tapping and recording of conversations should be prohibited.
The Human Rights Committee has dealt with a number of cases regarding the freedom of correspondence for prisoners. In the following case the Committee dealt with censorship of correspondence and privacy.
Human Rights Committee
Communication No. 74/1980
Views of 29 March 2002
Keywords: freedom of correspondence - private life - confession under duress – torture - prisoner’s rights - ill-treatment - right to choose own counsel - fair trial - non-discrimination - trial in absentia - denial of defence facilities - detention conditions
UNDER ARTICLE 5 (4) OF THE OPTIONAL PROTOCOL
1.1 The author of the communication [?] is an Argentine national, concert pianist by profession, at present living in France.
1.2 The author states that he became a member of the Movimiento Peronista in Argentina in 1966 [?]. These activities were allegedly considered to be “subversive” by the new military Government which came to power in Argentina in 1976. In April 1977, the author found that his name was on a list of Argentine intellectuals who could not participate in activities under the bilateral agreements which his country had signed with other States and that he had been denounced as “a subversive member of the Montoneros Organization” [?].
1.4 [?] The author mentions that from 11 December 1977 he noticed that he was constantly followed. [?].
1.5 The author claims that on the evening of 15 December 1977, Raquel Odasso and Luisana Olivera were abducted only a few yards from his home in Montevideo. [?]. The author further claims: [?] After 11 p.m., some 15 strongly armed individuals in civilian clothes broke in, threatening us with death if we did not surrender. Bracony and I had remained in the house. We came out with our hands up, trying to tell them that there was no need for any violence. They punched and kicked me and knocked me down, chaining my feet and hands, and then blindfolded me, pulled a hood over my head and pushed me towards a vehicle where they began to kick me all over.”
1.7 On 23 December 1977, the author was transferred to a military barracks, probably of Batallon 13, where he was kept blindfolded up to 20 January 1978 and subjected to ill-treatment during almost a month [?]. On 20 January 1978, the author was taken to Libertad prison. He spent the first 10 days in solitary confinement in a cell which was a kind of cage in a section known as “La Isla”. There he received visits from a military doctor. As he had lost 10 kilos, the doctor requested a special diet for him, which was refused. On 5 February his life as a prisoner became “normal”. From that time he was kept in the cells (first floor A) and on that day he was able for the first time to walk in the open air for an hour and to have contact during that period with a fellow prisoner.
1.13 The author states that the detainees’ correspondence is subjected to severe censorship, that they cannot write to their lawyers or to international organizations and that prison officials who act as ‘censors” arbitrarily delete sentences and even refuse to dispatch letters. He claims that during his entire detention he was given only 35 letters, though he certainly received hundreds. During a seven-month period he was given none. He states that Lieutenant Rodriguez and Lieutenant Curruchaga asked him to sign for the receipt of letters which he never saw.
9.2 With regard to the censorship of Miguel Angel Estrella’s correspondence, the Committee accepts that it is normal for prison authorities to exercise measures of control and censorship over prisoners’ correspondence. Nevertheless, article 17 of the Covenant provides that “no one shall be subjected to arbitrary or unlawful interference with his correspondence”. This requires that any such measures of control or censorship shall be subject to satisfactory legal safeguards against arbitrary application [?]. Furthermore, the degree of restriction must be consistent with the standard of humane treatment of detained persons required by article 10 (1) of the Covenant. In particular, prisoners should be allowed under necessary supervision to communicate with their family and reputable friends at regular intervals, by correspondence as well as by receiving visits. On the basis of the information before it, the Committee finds that Miguel Angel Estrella’s correspondence was censored and restricted at Libertad prison to an extent which the State party has not justified as compatible with article 17 read in conjunction with article 10 (1) of the Covenant.
Here the Committee dealt with censorship, reiterating that measures of control or censorship shall be subject to satisfactory legal safeguards against arbitrary application. Furthermore, detainees shall be allowed to ‘communicate with their family and reputable friends at regular intervals, by correspondence as well as by receiving visits.’
The European Court has made several pronouncements on the collection and use of data and surveillance information and their impact on the right to privacy. Prisoners have brought the majority of cases alleging interference with correspondence before the European Court. In the case of Campbell and Fell v. The United Kingdom (Application No. 8342/95, Judgement of 28 June 1984) the applicant complained that correspondence with his lawyer was opened and read by prison authorities. The Court concluded that there was no pressing social need that warranted the interference and established that the right to uncensored correspondence with one’s lawyer is in principle privileged under Article 8. Only in exceptional circumstances may correspondence between prisoner and lawyer be read, when there is reasonable cause to believe that the content may threaten the safety of others or prison security or is of criminal nature. Correspondence of a non-legal nature may in some instances be censored, e.g. when it refers to other prisoners or illegal activities taking place in the prison (see Silver et al. v. The United Kingdom,Application Nos. 5947/72, 6205/73, 7052/75, 7061/75, 7107/75, 7113/75, 7136/75, Judgement of 25 March 1983). In Schönenberger and Durmaz v. Switzerland (Application No. 11368/85, Judgement of 20 June 1988) the Court established that preventing a prisoner from receiving a letter may constitute an interference with his right to correspondence.
The European Court considers telephone conversations to fall under the concept of correspondence protected under Article 8. Telephone tapping constitutes a serious interference with the right to privacy and must be subject to precise laws. In Kopp v.Switzerland (Application No. 23224/94, Judgement of 25 March 1998), the applicant’s phone was tapped in relation to a criminal investigation against him. The Court found a violation of the right to privacy, as there were no clear laws on the procedure for distinguishing between privileged (lawyer/client) information and other matters. Similarly, both France and the United Kingdom have been found to have violated the right to privacy in relation to telephone tapping as the rules governing the discretion conferred on public authorities to carry out telephone surveillance were considered unclear (see Huvig v. France, Application No.11105/84, Judgement of 24 April 1990 andMalone v. The United Kingdom, Application No. 8691/79, Judgement of 2 August 1984).
Several cases have been brought to the European Court relating to surveillance. In P.G. and J.H. v. The United Kingdom (Application No. 44787/98, Judgement of 25 September 2001) the Court discussed implications of the public recording and monitoring of one’s activities outside the home:
There are a number of elements relevant to a consideration of whether a person’s private life is concerned in measures effected outside a person’s home or private premises. Since there are occasions when people knowingly or intentionally involve themselves in activities which are or may be recorded or reported in a public manner, a person’s reasonable expectations as to privacy may be a significant, although not necessarily conclusive, factor. A person who walks down the street will, inevitably, be visible to any member of the public who is also present. Monitoring by technological means of the same public scene (for example, a security guard viewing through closed-circuit television) is of a similar character. Private life considerations may arise, however, once any systematic or permanent record comes into existence of such material from the public domain.
In this case police interviews with the applicants were recorded lawfully, but the recording of their voices for further analysis was regarded as the processing of personal data, amounting to an interference with their right to privacy.
Frequently, the surveillance per se is lawful but systematic or permanent records of information gathered may give rise to violations of privacy. In the cases of Rotaru v.Romania (Application No. 28341/95, Judgement of 4 May 2000) and Amann v.Switzerland (Application No. 27798/9, Judgement of 16 February 2000) the compilation of data by security services on particular individuals, even without the use of covert surveillance, constituted an interference with privacy. In the following case the applicant was filmed by public security surveillance cameras. The materials were later released publicly without masking the applicant’s identity appropriately.
European Court of Human Rights
Application No. 44647/98
Judgement of 28 January 2003
Keywords: surveillance - public disclosure of surveillance footage - private life
I. THE CIRCUMSTANCES OF THE CASE
125. In August 1995 the applicant was suffering from depression as a result of personal and family circumstances. On 20 August 1995 at 11.30 p.m. he walked alone down the high street towards a central junction in the centre of Brentwood with a kitchen knife in his hand and he attempted to commit suicide by cutting his wrists. He stopped at the junction and leaned over a railing facing the traffic with the knife in his hand. He was unaware that a CCTV camera, mounted on the traffic island in front of the junction, filmed his movements. The CCTV footage later disclosed did not show the applicant cutting his wrists, the operator being solely alerted to an individual in possession of a knife at the junction.
126. The police were notified by the CCTV operator and arrived. They took the knife from the applicant, gave him medical assistance and brought him to the police station. He was detained under the Mental Health Act 1983. [?].
B. Release and publication of the footage
127. On 14 September 1995 the CCTV working party of the Council agreed to authorise the release of regular press features on the CCTV system. [?].
128. In late October or November 1995 the applicant became aware that he had been filmed on CCTV and that footage had been released because a neighbour told his partner that the former had seen him on television. He did not take any action then as he was still suffering from severe depression.
129. At or about that time the Council agreed to furnish CCTV footage of, inter alia, the applicant to the producers of “Crime Beat”, a series on BBC national television with an average of 9.2 million viewers. The Council imposed orally a number of conditions on the producers including that no one should be identifiable in the footage and that all faces should be masked. [?].
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
130. The applicant complained that the disclosure by Brentwood Borough Council of the relevant CCTV footage, which resulted in the publication and broadcasting of identifiable images of him, constituted a disproportionate interference with his right to respect for his private life guaranteed by Article 8 of the Convention. [?].
A. The existence of an interference with private life
2. The Court’s assessment
131. Private life is a broad term not susceptible to exhaustive definition. The Court has already held that elements such as gender identification, name, sexual orientation and sexual life are important elements of the personal sphere protected by Article 8. That Article also protects a right to identity and personal development, and the right to establish and develop relationships with other human beings and the outside world and it may include activities of a professional or business nature. There is, therefore, a zone of interaction of a person with others, even in a public context, which may fall within the scope of “private life” [?].
132. The monitoring of the actions of an individual in a public place by the use of photographic equipment which does not record the visual data does not, as such, give rise to an interference with the individual’s private life [?].
133. However, the Court notes that the present applicant did not complain that the collection of data through the CCTV-camera monitoring of his movements and the creation of a permanent record of itself amounted to an interference with his private life. Indeed, he admitted that that function of the CCTV system, together with the consequent involvement of the police, may have saved his life. Rather, he argued that it was the disclosure of that record of his movements to the public in a manner in which he could never have foreseen which gave rise to such an interference.
134. The present applicant was in a public street but he was not there for the purposes of participating in any public event and he was not a public figure. It was late at night, he was deeply perturbed and in a state of distress. While he was walking in public wielding a knife, he was not later charged with any offence. The actual suicide attempt was neither recorded nor therefore disclosed. However, footage of the immediate aftermath was recorded and disclosed by the Council directly to the public in its CCTV News publication. In addition, the footage was disclosed to the media for further broadcasting and publication purposes. [?]. The applicant’s identity was not adequately, or in some cases not at all, masked in the photographs and footage so published and broadcast. He was recognised by certain members of his family and by his friends, neighbours and colleagues.
As a result, the relevant moment was viewed to an extent which far exceeded any exposure to a passer-by or to security observation [?] and to a degree surpassing that which the applicant could possibly have foreseen when he walked in Brentwood on 20 August 1995.
135. Accordingly, the Court considers that the disclosure by the Council of the relevant footage constituted a serious interference with the applicant’s right to respect for his private life.
B. Whether the interference was in accordance with the law and pursued a legitimate aim
136. The Court has noted the terms of section 163 of the 1994 Act and section 111(1) of the 1972 Act and the judgment of, in particular, the High Court. That court noted that the purpose of section 163 of the 1994 Act was to empower a local authority to provide CCTV equipment in order to promote the prevention of crime and the welfare of victims of crime. It further noted that the publicising of information about the successful operation of the CCTV system reinforced the deterrent effect of its operation. The Council had the power to distribute the CCTV footage to the media for transmission by virtue of section 111(1) of the 1972 Act in the discharge of their functions under section 163 of the 1994 Act.
137. Accordingly, the Court considers that the disclosure did have a basis in law and was, with appropriate legal advice, foreseeable (see The Sunday Times v. the United Kingdom (no. 1), judgment of 26 April 1979, Series A no. 30, p. 31,§ 49).
It also regards the disclosure as having pursued the legitimate aim of public safety, the prevention of disorder and crime and the protection of the rights of others.
C. Whether the interference was justified
2. The Court’s assessment
138. In determining whether the disclosure was “necessary in a democratic society”, the Court will consider whether, in the light of the case as a whole, the reasons adduced to justify the disclosure were “relevant and sufficient” and whether the measures were proportionate to the legitimate aims pursued.
139. In cases concerning the disclosure of personal data, the Court has recognised that a margin of appreciation should be left to the competent national authorities in striking a fair balance between the relevant conflicting public and private interests. However, this margin goes hand in hand with European supervision [?] and the scope of this margin depends on such factors as the nature and seriousness of the interests at stake and the gravity of the interference [?].
140. As to the present case, the Court would note at the outset that the applicant was not charged with, much less convicted of, an offence. The present case does not therefore concern disclosure of footage of the commission of a crime.
The Court has also noted, on the one hand, the nature and seriousness of the interference with the applicant’s private life (see paragraph 63 above). On the other hand, the Court appreciates the strong interest of the State in detecting and preventing crime. It is not disputed that the CCTV system plays an important role in these respects and that that role is rendered more effective and successful through advertising the CCTV system and its benefits.
141. However, the Court notes that the Council had other options available to it to allow it to achieve the same objectives [?].
142. In sum, the Court does not find that, in the circumstances of this case, there were relevant or sufficient reasons which would justify the direct disclosure by the Council to the public of stills from the footage in its own CCTV News article without the Council obtaining the applicant’s consent or masking his identity, or which would justify its disclosures to the media without the Council taking steps to ensure so far as possible that such masking would be effected by the media. The crime-prevention objective and context of the disclosures demanded particular scrutiny and care in these respects in the present case.
143. Finally, the Court does not find that the applicant’s later voluntary media appearances diminish the serious nature of the interference or reduce the correlative requirement of care concerning disclosures. The applicant was the victim of a serious interference with his right to privacy involving national and local media coverage: it cannot therefore be held against him that he sought thereafter to avail himself of the media to expose and complain about that wrongdoing.
144. Accordingly, the Court considers that the disclosures by the Council of the CCTV material in the CCTV News and to the Yellow Advertiser, Anglia Television and the BBC were not accompanied by sufficient safeguards to prevent disclosure inconsistent with the guarantees of respect for the applicant’ private life contained in Article 8. As such, the disclosure constituted a disproportionate and therefore unjustified interference with his private life and a violation of Article 8 of the Convention.
The Court held that there had been breaches of both Articles 8 and 13. The applicant had been in a public street but he was not participating in a public event, nor was he a public figure. The broadcasts and publications of the footage, insufficiently masking his identity, resulted in publication to a degree ‘surpassing that which the applicant could possibly have foreseen when he walked in Brentwood’. The Court also found that the state had failed to provide an effective remedy as the threshold at which disclosure could be found irrational was so high that ‘it effectively excluded any consideration [?] of whether the interference [?] answered a pressing social need or was proportionate to the aims pursued [?]’. Furthermore, media commissions concerned had no power to award damages and therefore could not provide an effective remedy.
In Perry v. The United Kingdom (Application No. 63737/00, Judgement of 17 July 2003) the European Court held that the applicant’s human rights were infringed when he was secretly videotaped by police after he refused to take part in an identity parade. Witnesses identified him from the recording and he was subsequently convicted. The Court ruled that the taping was not in accordance with the law; that the police had not followed procedures laid out in the applicable code of practice as they had not informed the applicant that he was being filmed nor obtained his consent or informed him of his rights.
The protection of personal information is fundamental to the right to respect for privacy. The Human Rights Committee has in General Comment 16 stated that individuals have the right to request rectification or elimination of any personal files containing incorrect personal data or files that have been collected or processed contrary to the provisions of the law. Similarly, the European Court established in Leander v. Sweden (Application No. 9248/81, Judgement of 26 March 1987) that not allowing individuals to challenge personal information in secret police files may constitute a violation of the right to privacy. The disclosure of private information by authorities may also give rise to violations of the right to respect for private life. In the case of Z. v. Finland (Application No. 22009/93, Judgement of 25 February 1997) the applicant alleged a violation of Article 8 as her health records, including her status as HIV positive, had been disclosed in court proceedings without her consent.
95. In this connection, the Court will take into account that the protection of personal data, not least medical data, is of fundamental importance to a person’s enjoyment of his or her right to respect for private and family life as guaranteed by Article 8 of the Convention. [?].
The domestic law must therefore afford appropriate safeguards to prevent any such communication or disclosure of personal health data as may be inconsistent with the guarantees in Article 8 of the Convention [?].
96. The above considerations are especially valid as regards protection of the confidentiality of information about a person’s HIV infection. The disclosure of such data may dramatically affect his or her private and family life, as well as social and employment situation, by exposing him or her to opprobrium and the risk of ostracism. [?]. The interests in protecting the confidentiality of such information will therefore weigh heavily in the balance in determining whether the interference was proportionate to the legitimate aim pursued. Such interference cannot be compatible with Article 8 of the Convention unless it is justified by an overriding requirement in the public interest.
In view of the highly intimate and sensitive nature of information concerning a person’s HIV status, any State measures compelling communication or disclosure of such information without the consent of the patient call for the most careful scrutiny on the part of the Court, as do the safeguards designed to secure an effective protection [?].