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Surveillance and Democracy - Essay Example

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Although the UK, per se, has not established through statutory means a law which directly addresses the right to privacy of its citizens the state falls under the EU Convention on Human Rights. Article 8 of the convention deals specifically with the right to respect for ones private life, and states as follows:
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Surveillance and Democracy
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Download file to see previous pages As seen in s8(2) there has been built into the statute several exceptions which leaves the law somewhat open to interpretation. Firstly, as held in Malone v UK (1984) 7 EHRR 14, the right to respect for private and family life, home and correspondence is not to be infringed upon unless there is statute to the contrary to which the citizens are aware. As stated in Taylor (2002) the EU court has been especially stringent with regard to personal communications (see Kopp v Switzerland (1999) 27 EHRR 91). In this case, the court held that state infringement upon private communications of the citizens displayed a serious breach against their right to a private life.
The EU Convention of Human Rights has maintained that if there is to be a breach of citizen's right to private life it must be for a specific legal purpose, that is to say supported by legal statute. The last area to consider within the framework of the EU Convention of Human Rights is to ascertain the balance of individual citizens' rights against that of the greater good. In short, according to Taylor (2002) this balance requires a test of proportions, essentially measuring the pros and cons. In short, it is imperative that the state within the legal framework on a case by case basis weigh the facts and determine if the great good will outweigh the individual infringement upon an individual citizen.
As stated previous the EU as found in the Human Rights Act and as discussed previous has upheld that any infringement must be legitimized by state statute. This was upheld with regard to the tapping of personal phones in the UK. In Malone v Metropolitan Police Commissioner No.2 [1979] 2 WLR 700 the court held that the police had used a wiretap to obtain information regarding the defendant's criminal activity. As the UK had no statute on the books legitimizing the wiretap and therefore infringement on the defendant's right to privacy with respect to personal communications the conviction was overturned upon appeal to the EU. Even though there had been prior precedent for wiretapping as established by the government without a binding legal framework, the EU found the legitimate exception rule had not been met.
In an attempt to reactivity the lack of statute the UK passed the Interception of Communications Act 1985. However this act provide ineffective in providing the legal framework necessary to obtain little more than wiretaps for public telephones. In case and after case specific modes of communication were found to be exceptions to this law (i.e. cordless telephones, private networks etc). The statute was tested even further when the police used a listening device to obtain a confession and eventual conviction of a heroine smuggler. On appeal within the UK in (R v Khan [1996] 3 WLR 162, the court found that even if the confession were to be determined later to be in breach of s(8) the court could not justify overturning the verdict.
The defendant did appeal to the EU and the court found t ...Download file to see next pagesRead More
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