[AlexanderHanff]

Oooo some case law re: RIPA Crown vs C Stanford (Demon Internet). Stanford pleaded guilty judge says:

"It is essential people, in whatever walks of life, and, of course, those running important businesses, should know that the integrity of their confidential communication should be respected, and ... they will be protected from being hacked into by outsiders."

(Source: http://news.bbc.co.uk/1/hi/uk/4251264.stm )

That's the first piece of case law I have managed to find relating to RIPA and interception on a public telecommunications network which involved an individual as opposed to the police. I will try and dig up the paperwork for the case after I have had a sleep, but I suspect it is going to raise the same points we have been raising over Phorm for the past 6 weeks.

Alexander Hanff

---------- Post added at 16:13 ---------- Previous post was at 15:57 ----------

The Horizontal Effect of the Human Rights Act 1998

The protection of human rights in the private, as well as the public, sector is also supported by the Human Rights Act 1998 through its incorporation of the Convention into domestic law. The 1998 Act has a direct effect on public authorities and an indirect effect on private bodies. Public authorities are directly (vertically) bound since section 6(1) of the 1998 Act states that it is unlawful for a public authority to act incompatibly with Convention rights.(11) The 1998 Act also has a horizontal effect whereby Convention rights are indirectly enforceable against private bodies. This is achieved through sections 3 and 6 of the Act. Section 3(1) requires that the domestic courts interpret existing and future legislation (so far as it is possible to do so) in a way compatible with Convention rights (incompatible legislation remains valid). Section 3 is not worded to limit its effect only to legislation concerning public authorities, so it can apply to wholly private disputes.

Private bodies can also be indirectly bound by the 1998 Act since section 6(3)(a) defines a ‘public authority’ as including courts and tribunals. Therefore, in an action against a private body (for example, an employee suing for unfair dismissal) a human rights claim can be attached. The main cause of action is not the rights issue since these cannot be directly enforced against the private body (since section 6 only requires public authorities to act compatibly). Nevertheless, the court or tribunal is obliged to consider the human rights issue and must resolve it, through the application and interpretation of common law, equity or legislation, in a manner compatible with the Convention.(12)

The positive obligation imposed on states by the European Convention on Human Rights also lends weight to the argument that section 6 should have horizontal effect. Firstly, because the courts are part of the state they are subject to the Convention obligations, and these feed through into domestic law via section 6 and are imposed on the courts as public authorities (Davies 2000, p.839; Lester and Pannick 2000, p.381; Hunt 1998, pp.435-6). Secondly, section 2 of the 1998 Act requires that the courts must take Convention jurisprudence into account when interpreting Convention rights. Thus, the positive obligation will also come to form a part of domestic jurisprudence through this route (Bamforth 1999, pp.166-8).

The end result is that just as an individual or business can now claim privacy rights against public authorities in both international and domestic law, a private body (such as a business) may also find itself vulnerable to privacy claims from other private bodies (such as employees). However, just as the public authority may be able to show a legal justification for its interference with rights, equally a business may also be able to justify its interference. In particular, as a ‘legal person’ a business could monitor the communications of its employees in order to protect its own right to peaceful enjoyment of possessions (Article 1, First Protocol) against threats to its trade secrets or reputation (Bingley 2000, p.5). The restriction to an employee’s privacy could then be justified as falling within Article 8(2) ‘for the protection of the rights and freedoms of others.’

(Source: http://webjcli.ncl.ac.uk/2002/issue1/kb-rm1.html )

Alexander Hanff