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The Orwellian ‘Big Brother’ analogy has been used ad nauseam and is very well-known among the general populace, often used in sensational headlines whenever any issue regarding privacy finds itself in the news.

For the sake of using a different analogy as well as to portray a different, perhaps more modern, perspective on surveillance, consider one of the final scenes of Christopher Nolan’s “The Dark Knight”. Towards the end of the movie, the titular hero reveals to his associate, Mr Lucius Fox, that he has developed a city-wide surveillance system, with the intent being of using the system to locate the Joker, Batman’s arch-nemesis, and stop him before the former carries out his dastardly plot.

 The fictional surveillance system works by turning every mobile phone device in Gotham City into a sonar that allows the entire city to be visually mapped in real-time, including the location of persons within the city. Mr Fox is taken aback by the severe invasion of privacy which such a surveillance system entails, calling it “unethical and dangerous‚Ķ”and claiming that “this is wrong”, notwithstanding the benevolent purpose for which it is intended. Consequently, he reluctantly agrees to help Batman just this once, but warns that he shall have to resign from his position at Wayne Enterprises so long as such a surveillance system remains operational. To Mr Fox’s surprise and relief, the surveillance system self-destructs once its intended purpose is fulfilled, allowing him to keep his job, while Batman saves the day yet again.

Though the above premise may prima facie seem fantastical, reality is not so far off, with scandals and leaks on government and corporate surveillance becoming more and more ubiquitous. New methods of surveillance have emerged and they do not implode after a mere one-time use but, rather, are used continuously without reprieve and oftentimes without the knowledge of those being surveilled.

The ramifications of such surveillance are quite dire, as Batman’s assistant pointed out. Despite Mr Fox having known and worked closely with Batman for years, thereby being secure in the knowledge that the latter would never purposely invade a private citizen’s privacy with any malicious intent, Mr. Fox was still horrified at the implications of such a blatant and rampant intrusion into personal privacy. This reaction lends itself to the idea that an invasion of one’s privacy may be intrinsically wrong in and of itself, an idea which is replicated in both the European Union’s Charter of Fundamental Human Rights and its spiritual predecessor, the Council of Europe’s European Convention on Human Rights (European Convention). The latter has recently been invoked by the European Court of Human Rights (‘ECtHR’) in the case of (the aptly-named) Big Brother Watch and Others v the UK, decided on the 13th of September.

The case began following Edward Snowden’s revelations concerning mass surveillance systems being operated by the UK government intelligence agency GCHQ. The UK government was revealed to have been intercepting the communications of millions of UK citizens, meaning that virtually the entire UK population was being surveilled. This lead the campaign groups Big Brother Watch, English PEN, Open Rights Group and computer science expert Dr Constanze Kurz to launch a crowdfunding campaign titled ‘Privacy not Prism’ (in reference to the ‘Prism’ surveillance system used by the UK government) so as to finance a legal challenge to the UK government in 2013. They succeeded in raising nearly ¬£30,000 from over 1,400 people to this effect.

The ECtHR found that the UK government had, in fact, breached Article 8 of the European Convention which protects citizens’ right to privacy. This was due to the mass surveillance that was carried out by the UK being wildly indiscriminate, not distinguishing between actual and potential terrorists that could be a danger to the state and innocent citizens. The system allowed intelligence services unrestricted access to various communications data of private citizens, including the parties to a communication, their locations, their browsing habits and IP addresses.

Moreover, the ECtHR found that the system also lacked sufficient oversight and proper safeguards against abuse by such intelligence services. The importance of such safeguards was emphasised by the Court when it said:

In view of the risk that a system of secret surveillance set up to protect national security may undermine or even destroy democracy under the cloak of defending it, the Court must be satisfied that there are adequate and effective guarantees against abuse”.

This explains why the surveillance was found by the ECtHR to be highly disproportionate and in breach of Article 8 of the European Convention. This judgment will undoubtedly aid in placing pressure on the UK government to reform its relevant laws on the subject.

Referring back to the earlier analogy, one might bleakly realise that the case at hand is not so far off. With respect to government surveillance, a fine line exists between privacy and public security. This line is becoming progressively more blurred (see recent development in Malta) and it is increasingly more difficult for citizens to be certain of their own privacy. This recent judgment, while a step in favour of greater privacy and less intrusive measures, also serves to provoke even more questions on the role government surveillance should play in safeguarding its citizens and to what extent (if at all) such surveillance is subject to scrutiny. To quote another work by DC comics: “Who Watches the Watchmen?”

This document does not purport to give legal advice. For any queries relating to data protection (including sector-specific information) and TMT matters, please do not hesitate to contact Dr Antoine Camilleri, Dr Claude Micallef-Grimaud or Dr Warren Ciantar.