Big Brother Watch, Private Investigators and the ECHR

Richard A. Edwards. ILHRU. UWE Bristol.

The civil rights pressure group Big Brother Watch (BBW) has published an interesting report that has clear human rights implications, although the report does not discuss these fully.

Using freedom of information requests BBW examined the use of private investigators by public authorities. By contracting out surveillance public authorities have managed to evade the new judicial authorisation requirement that the Protection of Freedoms Act 2012 inserted into the Regulation of Investigatory Powers Act 2000 (RIPA). BBW argues that this contracting out enables public authorities to undertake surveillance without appropriate supervision and authorisation. This has two further benefits for public authorities. Not only is any evidence procured admissible in English law, the public authority also has the advantage of being able to distance itself from any wrong doing by the private investigator by sheltering behind a veil of ignorance. BBW argues, rightly, that this is a significant lacuna in the legal protection of privacy. This is true, and might have usefully been re-enforced by reference to the Human Rights Act 1998 (HRA) and the ECHR.

Article 8 ECHR protects the right to privacy. Article 8 binds public authorities via s.6 of the HRA. Article 8 ECHR requires, amongst other things, that the law must provide sufficient protection against arbitrary inferences with the right to privacy from covert surveillance by public authorities (Khan v UK [2000] ECHR 35394/97). However, private investigators will fall outside the scope of not only RIPA but also the HRA and there will not be bound by the duty to act compatibly with Convention rights. Indeed, a private company conducting surveillance, even when paid for out of public funds, is not a public authority within s6(3)(b) HRA (YL v Birmingham City Council [2007] UKHL 27). No doubt for public authorities this is part of the attraction of using private investigators.

This position is, however, untenable. The European Court of Human Rights has long held that even if corporate bodies are not bound by human rights norms they can nevertheless incur liability for the state as a consequence of their actions. Article 8 ‘does not merely compel the State to abstain from such interferences: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private or family life … these obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves.’ (X and Y v Netherlands [1985] ECHR 8978/80, para 23.) Thus in López Ostra v Spain [1994] ECHR 16798/90, paras 54-56 the Spanish state was responsible under Article 8 for the environmental pollution caused by a waste disposal plant that had not been properly regulated by the local authority. (See also Taşkin v Turkey [2004] ECHR 46117/99). Indeed, the Legal Affairs Committee of the Parliamentary Assembly in its 2010 report on corporate responsibility for human rights infringements (‘Human rights and business’) detailed many such examples. 

Thus if a local authority contracts with a private investigator, and the latter interferes with rights covered by Article 8, the UK is arguably in breach of its obligations under Articles 1 and 8 ECHR because there is insufficient legal protection for those rights. This, of course, ties in neatly with BBW’s argument that UK law is in urgent need of amendment.

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