Page 164 - Law and the Media

The ‘New’ Right to Privacy
significant ramifications for them in their capacity as employers, particularly in their
attempts to monitor staff emails and telephone conversations.

8.5.2 Surveillance and interception of communications

The right to privacy pervades all areas. Long-range photos and closed circuit television
would seem to cross the boundary of what is acceptable as evidence before the courts.
Recently, some tribunals have displayed their increasing discomfort about accepting such
surveillance as evidence. Similarly, police video-surveillance activities could also fall within
the scope of the HRA. The police in the United Kingdom may have to adopt the position of
their European counterparts and take particular care to comply with principles of
proportionality. In order to ensure that freedom of movement and conduct are not
unreasonably impinged upon, the use of video surveillance may be restricted to the
prevention of ‘real danger’ or the suppression of a specific criminal offence.

However, one complicating factor is the interrelation of the right to privacy with the DPA and
the RIPA. The DPA was introduced to implement the European Union Data Protection
Directive, and was never envisaged as being a civil liberties measure. It is more a mechanism
for facilitating the collection, storage, regulation and possible trade in personal data within
the European Community. The DPA may complement the HRA. However, if the DPA fails
to protect personal privacy in accordance with the European Union Data Protection
Directive, the United Kingdom is likely to be in breach of its community obligations.

The RIPA makes it illegal to intercept communications such as telephone calls or email
unless it is necessary for a specific purpose such as national security, preventing or detecting
crime or preventing disorder or in the interests of public safety. This will allow the police and
MI5 to collect Internet data without a warrant, to pick up emails of people suspected of
serious crimes with a warrant, and to demand encryption tools with a view to unscrambling
data. One school of thought is that the RIPA follows a long tradition of government snooping
and cements the state’s right to ‘tap’ emails and any other forms of communication in order
to prevent crime, maintain national security and economic well-being. It is equally arguable
that the RIPA delineates the state’s powers of interception and actually safeguards a person’s
right to privacy. It remains to be seen whether the Government will accept the proposals
made by the Deputy Director General of the National Criminal Intelligence Service that
Britain’s police and intelligence services should be allowed unrestricted access to records of
every telephone call, email and Internet connection made in the United Kingdom. The events
of 11 September 2001 in New York and Washington may well impact on any decision made
in this area. The Government has already brought about sweeping security measures in
response to the terrorist attacks in the form of the Anti-Terrorism, Crime and Security Act
2001, some of which impacts on surveillance and interception of communications. The
Government will also no doubt closely observe the effectiveness of the Combating Terrorism
Act 2001, passed by the United States Senate two days after the terrorist attack, and the USA
Patriot Act 2001, passed by the Senate in October 2001 (see Chapter 21).
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