Complementing the Surveillance Law Principles of the ECtHR with its Environmental Law Principles: An Integrated Technology Approach to a Human Rights Framework for Surveillance

Abstract

Looking at the case law of the European Court of Human Rights on surveillance, one notices a well maturing set of principles, namely: legality, legitimacy, proportionality (the standard check) and, if the Court is ‘on it’, also necessity and subsidiarity (the closer scrutiny check). In this contribution, we go through the surveillance case law of the Court. We find that 1) not all surveillance is considered relevant to the right to privacy (the threshold problem); 2) when surveillance is subjected to a privacy right analysis, concerns about rights contained in other provisions, such as Articles 6, 13 and 14 of the Convention, are added; 3) not all surveillance that interferes with privacy is considered as problematic, hence differences in the Court’s view with regard to the legality requirement and the intensity of the scrutiny arise. This contribution goes beyond a straightforward analysis of the Court’s surveillance case law. In our second part we turn to Murphy and Ó Cuinn’s research on a ‘new technology’ approach in the Court’s case law and on principles that apply to a wide range of technology-related issues (from surveillance, to biomedicine, to polluting technologies). We focus in particular on the case law of the Court on environmental matters. We find that greater coherence could be reached in the Court’s case law on surveillance by integrating the environmental law principles of participation, precaution, access to information and access to justice in surveillance matters. Nevertheless, such a move would be very desirable and give new momentum to the Court’s case law on surveillance-related interferences.