Kennedy v United Kingdom  ECHR 682 (18 May 2010)
Whilst specific breaches of the European Convention of Human Rights were not ultimately upheld, this case provides insight into the application and scope of the right to privacy enshrined in art 8 of the Convention. Furthermore, the European Court of Human Rights discussed in depth the breadth of the requirement to exhaust domestic remedies and the jurisdiction available to courts that deal with legislative compatibility with human rights instruments.
Mr Kennedy was imprisoned in the early 1990s after a series of appeals and retrials relating to what he alleged was a false charge of murder by police of a cellmate after he was held overnight at a police station for drunkenness. The case attracted a large amount of public and parliamentary scrutiny of the police force and United Kingdom judicial system and after being released, Mr Kennedy actively campaigned against miscarriages of justice.
After his release, Mr Kennedy established a small business which was initially successful, however began to suffer as a result of interferences with his business telephone. Mr Kennedy suspected that this was due to his email, mail and telephone communications being intercepted as a result of his high profile case and involvement in campaigning against the police. Mr Kennedy alleged that interception warrants that were originally authorised for the criminal proceedings against him were being unlawfully renewed.
The Court found that no breaches of art 8 (right to privacy), art 6 (right to fair hearing) or art 13 (right to an appropriate remedy) of the Convention had occurred. The remainder of this note is concerned with the Court’s discussion of art 8, as this right formed the substantial portion of the judgment.
In order to address Mr Kennedy’s individual complaint under art 8, the Court was required to investigate the merits of whether there was an unlawful interference with Mr Kennedy’s right to privacy.
The Court held that mail, telephone and email communications, even in business dealings, are capable of protection under art 8 to be included in interpretations of ‘private life’ and ‘communications’. Whilst the Court’s jurisdiction normally permits it to only determine whether the manner in which a law has been applied gives rise to a violation of the Convention, legislation involving secret surveillance measures requires particular supervision and care, and as such, the Court had jurisdiction to broaden their scope of analysis. The Court was required to determine whether there was a ‘reasonable likelihood’ that Mr Kennedy’s communications were being intercepted.
The Court found that this was enough to give rise to a complaint, however, it dismissed his individual complaint on the basis that the interference was justified. This accorded with the exception available in art 8(2) of the Convention, and required the Court to determine whether the domestic Act itself was proportionate, necessary and in accordance with the rule of law. The Court undertook extensive analysis to determine whether the intertwining roles of the relevant Commissioner, Code, Act and policy satisfied this outcome. The Court found that in this case there was sufficient clarity and effective safeguards to ensure that the Act, and the interference with Mr Kennedy’s communication, was therefore not a breach of art 8 of the Convention.
Relevance to the Victorian Charter
The right to privacy is enshrined under section 13(a) of the Victorian Charter, which states that a person has the right not to have their privacy, home or correspondence unlawfully or arbitrarily interfered with.
The Court’s ruling on the scope of the right to include email, telephone and mail correspondence, even in the course of business, is helpful for interpreting this section. If raising an individual complaint related to this right, it may be necessary for a similar, policy-based requirement of ‘reasonable likelihood’ to be raised by an application under the Charter.
The decision is at www.bailii.org/eu/cases/ECHR/2010/682.html.
Alexandra Phelan, Law Graduate, Mallesons Stephen Jaques Human Rights Law Group