Following is a re-post of an analysis from 4 New Square Chambers.
The European Court of Human Rights’ recent decision in Big Brother Watch and Others v the UK (“Big Brother Watch”) – in which it was held that certain aspects of the UK’s mass surveillance programmes, as unearthed by Edward Snowden, are a violation of various Articles of the European Convention on Human Rights – has unsurprisingly been lauded by campaigners as a clear statement that the UK Government is continuing to breach privacy rights (Open Rights Group) and “a significant and important enhancement of privacy protections” (Privacy International).
However, this landmark judgment is another signal, also, of the seriousness with which the Strasbourg Court in particular regards the impact of surveillance not only on the right to privacy, as protected by Article 8 of the Convention, but on the right to freedom of expression, as safeguarded by Article 10; and, more specifically, the chilling effect that such practices can have on investigative journalism and whistle-blowing.
Indeed, given the categorical nature of the findings on Article 10, compared with the arguably more nuanced determinations in respect of Article 8, Big Brother Watch can be seen as the latest installment in a series of rulings from the European Court of Human Rights suggesting that it is freedom of expression – as much as, or perhaps even more so than, personal privacy – which is a benchmark, so far as the Convention is concerned, of a healthy and vibrant civil society.
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