Surveillance and the right to privacy: Is an ‘effective remedy’ possible?

Abstract

Privacy-the right most directly implicated in any discussion of surveillance-is often identified solely as a benefit to the individual, weighing against general social goods such as security. The imperceptibility of both the concept of privacy and the value of ʼnational security’ favours the security side of the equation, as the threats of terrorism and organised crime loom large as omnipresent fears in a security conscious society. Recognising these challenges, recourse to an external-yet, legitimate-source of privacy protection is an attractive option. Accordingly, the European Convention on Human Rights (ECHR) is a crucial instrument of human rights protection in the area of surveillance. While Ireland has avoided direct scrutiny of its surveillance regime from the ECtHR, the jurisprudence of the Strasbourg Court has played a clear role in the formulation of Irish surveillance legislation. In spite of this influence, there is cause to suspect that the legislative reforms may not add up to effective protection of the right to respect for private life as guaranteed by Article 8 of the Convention. While Article 8 is the substantive article most relevant in the surveillance context, the right to an effective remedy, as provided for in Article 13, must also be considered. The specific function of Article 13 is to ensure the ‘availability at national level of a remedy to enforce the substance of the Convention rights and freedoms’. The inherently secretive nature of surveillance presents a considerable obstacle to the justiciability of Article 8 rights in the surveillance context. This chapter considers how the challenges to providing an effective remedy in the surveillance context can be resolved and uses the Criminal Justice (Surveillance) Act 2009 (Surveillance Act) as a case study in order to evaluate how the Oireachtas has attempted to meet the standard for an effective remedy in this complex context.