December 05, 2014 | Elizabeth Knight

Court ruling paves the way for European Court of Human Rights to consider “Privacy not PRISM” case

The Investigatory Powers Tribunal (IPT) gave its judgment today in a major surveillance case brought by Privacy International, Liberty and Amnesty International. Disappointingly, the IPT ruled against the NGOs and accepted the security services’ position that they may in principle carry out mass surveillance of all fibre optic cables entering or leaving the UK and that vast intelligence sharing with the NSA does not contravene the right to privacy because of the existence of secret policies.


The decision should enable the European Court of Human Rights (ECtHR) to proceed with hearing the “Privacy not PRISM” case brought by ORG and others. It also means that Privacy International, Liberty and Amnesty International may join us in the ECtHR.

The NGOs challenged the government’s surveillance practices on the grounds that it breached our rights to privacy and freedom of expression. Read Privacy International’s summary of the judgment here.

It is a disappointing decision, but not a surprising one. ORG and the other human rights groups have long argued that the IPT is unable to provide an adequate remedy. It is able to hold secret hearings (as part of the hearing in this case was) without telling the claimant what happened at those hearings. There is no right of appeal from a decision of the IPT. In this case the government refused to divert from its “neither confirm nor deny” policy regarding the existence of its surveillance programmes, which meant the case had to consider hypotheticals.

ORG, Big Brother Watch, English PEN, Article 19 and Constanze Kurz have a case in the ECtHR that challenges the government’s surveillance practices on very similar grounds. Our “Privacy not PRISM” case questions the human rights compliance of GCHQ’s TEMPORA programme, carried out under s.8(4) Regulation of Investigatory Powers Act (RIPA) and the use of information obtained from the NSA’s PRISM programme. The case has been given a priority status by the ECtHR but is currently on hold pending today’s decision by the IPT.

The IPT case has forced the government to disclose previously secret polices, reveal its overly broad definition of “external communications” and admit that it can obtain communications from the NSA without a warrant. These disclosures will assist all of the rights groups' arguments in the ECtHR.

The decision means that the adjournment of our case is likely to be lifted soon. How soon this happens will depend on whether the claimants in the IPT decide to apply to the ECtHR and whether the court allows them to join our case. Privacy International has already indicated that it intends to complain to the ECtHR.

We await the decision of the ECtHR as to when it will re-start our case and begin its scrutiny of the government’s surveillance practices. All parties will now look to the ECtHR to defend our human rights where the IPT has failed to do so.