Complementing the surveillance law principles of the Court of Strasbourg with its environmental law principles. An integrated technology approach to a human rights framework for surveillance

P.J.A. de Hert, Antonella Galetta

Research output: Contribution to journalArticleScientificpeer-review

Abstract

If one looks at the case law of the European Court of Human Rights on surveillance matters, a well mature set of principles emerge, namely: legality, legitimacy, proportionality (the standard check) and, if the Court is "on it", also necessity and subsidiarity (the closer scrutiny check). We pass the surveillance case law and the principles developed therein in review and note 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 intensity of the scrutiny arise.
Beyond this analysis of the Court's surveillance case law, in the second part of this contribution we carry out further the research initiated by Murphy and Ó Cuinn about the existence of 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, over 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 to access justice into surveillance matters. Nevertheless, such move would be very desirable and give new momentum to the Court's case law on surveillance-related interferences.
Original languageEnglish
Pages (from-to)55
Number of pages75
JournalUtrecht Law Review
Volume10
Issue number1
DOIs
Publication statusPublished - 2014

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environmental law
surveillance
human rights
case law
Law
legality
privacy
right to privacy
subsidiarity
biomedicine
proportionality
new technology
interference
legitimacy
justice
participation

Cite this

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title = "Complementing the surveillance law principles of the Court of Strasbourg with its environmental law principles. An integrated technology approach to a human rights framework for surveillance",
abstract = "If one looks at the case law of the European Court of Human Rights on surveillance matters, a well mature set of principles emerge, namely: legality, legitimacy, proportionality (the standard check) and, if the Court is {"}on it{"}, also necessity and subsidiarity (the closer scrutiny check). We pass the surveillance case law and the principles developed therein in review and note 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 intensity of the scrutiny arise. Beyond this analysis of the Court's surveillance case law, in the second part of this contribution we carry out further the research initiated by Murphy and {\'O} Cuinn about the existence of 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, over 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 to access justice into surveillance matters. Nevertheless, such move would be very desirable and give new momentum to the Court's case law on surveillance-related interferences.",
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