By Ilia Siatitsa and Ioannis Kouvakas
Yesterday, we argued that blanket mobile phone location tracking measures that aim at containing the spread of the Covid-19 pandemic cannot be regarded as strictly necessary due to their indiscriminate nature and the existence of less intrusive alternatives with potentially similar effectiveness. In this second blog post, we reflect on whether states could derogate from Article 8 in order to impose indiscriminate location tracking.
As of 24 April 2020, ten states, i.e. Albania, Armenia, Estonia, Georgia, Latvia, Moldova, North Macedonia, Romania, San Marino and Serbia have officially derogated from their obligations under the European Convention on Human Rights (ECHR) citing the public health emergency posed by the pandemic, while a domestic court has also attempted to do so on behalf of the United Kingdom! Six of these states Albania, Estonia, Georgia, Latvia, North Macedonia and Romania – have explicitly included Article 8 (or the respective constitutional right) in the list of Articles they have chosen to derogate from. The European Court did not have the opportunity yet to pronounce on the legality of such a derogation – the first time a state officially derogated from Article 8 was Ukraine in 2015 during the armed conflict – in Cyprus v. Turkey, Turkey had not officially derogated from the Convention and the Court found that Article 8 was breached.
While the issue of derogations has already been discussed in several contributions elsewhere (see here and here among others), this post will not deal with the question whether a state of emergency that would justify a derogation under Article 15 exists. Instead, it focuses on whether a derogation from Article 8 ECHR, which already provides for a qualified right, is necessary in order to deploy indiscriminate mobile phone tracking measures that rely on location tracking. It concludes that a derogation from Article 8 would not offer these states much as these limits will still exist, even if we consider that a derogation from Article 8 can be valid.
Can a state derogate from privacy?
The right to privacy, as a qualified right, already allows for limitations outside a situation of state of emergency. This was already examined under Part 1. States can, thus, limit the right to privacy as long as the interference is “in accordance with the law and is necessary in a democratic society […] for the protection of health” (Article 8 para 2, ECHR). Consequently, each state party that derogates from Article 8 will have to prove that the limitations provision was not sufficient to justify the measures taken by the state for the protection of public health.
The monitoring body of the International Covenant on Civil and Political Rights, the Human Rights Committee, has already stressed, in its General Comment 29 (Article 4: Derogations during a State of Emergency), that it will be difficult to justify a derogation from a qualified right. States cannot derogate from articles at will . They will have to explain why derogating from a specific article was justified and necessary. This will be difficult with Article 8 as it is a qualified right. (GC29 ).
The ECtHR has accepted that the state parties enjoy a wide margin of appreciation in deciding not only whether the “life of the nation” is threatened by a public emergency, but also on the nature and the scope of derogating measures. As the Court stated in Ireland v. UK (Plenary):
By reason of their direct and continuous contact with the pressing needs of the moment, the national authorities are in principle better placed than the international judge to decide both on the presence of such an emergency and on the nature and scope of the derogations necessary to avert it. In this matter Article 15 para. 1 (art. 15-1) leaves those authorities a wide margin of appreciation. 
However, this margin of appreciation is not a carte blanche for states wishing to derogate. Article 15 para 1 provides that a state may derogate from its obligations under the Convention only “to the extent strictly required by the exigencies of the situation”. The Court has emphasised that the “domestic margin of appreciation is thus accompanied by a European supervision” and that it is “empowered to rule on whether the States have gone beyond the “extent strictly required by the exigencies” of the crisis” (Ireland v. UK, ).
The Court will have to decide whether the derogation specifically from Article 8 was justified taking into account the specific measures taken under the derogation. Already two of the states have decided that a derogation from Article 8 was not necessary (Moldova and Armenia). None of the six countries (Albania, Estonia, Georgia, Latvia, North Macedonia, Romania and Serbia) that have explicitly derogated from Article 8 have moreover provided specific reasons for an Article 8 derogation.
Do states need to derogate from Article 8 to use indiscriminate location tracking measures?
The question that arises is how much more intrusive interferences can be with Article 8 or how loose can the Court’s review of measures introduced during an Article 15 derogation be. Professor Kanstantsin Dzehtsiarou argues, in his post, that “Article 15 might help to overcome the legality requirement and loosen the scrutiny in proportionality analysis but the practical impact of Article 15 might be very limited”.
Focusing on the “necessary in a democratic society” test, it is questionable whether a derogation from Article 8 will be able to grant states a cloak of invisibility with regard to the Court’s scrutiny. This is because, first, even if the Court accepted that a derogation from Article 8 is permissible, it would still have to use a similar test to examine the validity of the derogation. Second, any measures introduced, even during a period of derogation, will still have to respect the essence of the right to privacy.
As a result, if any of these measures are eventually challenged before the Strasbourg Court, the latter, in line with its previous jurisprudence, will very likely deploy a rigorous standard of review to make sure that Article 15 is not used as a vehicle to legitimise unfettered executive powers (see among others Aksoy v. Turkey, Brannigan and McBride v. UK (Plenary)). As the Grand Chamber made clear in A and Others v. UK (GC), a case that concerned the indefinite detention of foreigners prisoners under anti-terrorism regulations
Nonetheless, it is ultimately for the Court to rule whether the measures were “strictly required”. In particular, where a derogating measure encroaches upon a fundamental Convention right, such as the right to liberty, the Court must be satisfied that it was a genuine response to the emergency situation, that it was fully justified by the special circumstances of the emergency and that adequate safeguards were provided against abuse. 
As there is no precedent in relation to a derogation from Article 8 of the Convention we can only speculate at this point, but there is no plausible reason to think that the Court will follow a different (if not an even more robust) approach, considering that this time it will have to do with a qualified right that could have initially accommodated the measures required to respond to the pandemic.
This might equally mean that, if a state eventually opts for blanket location tracking measures, the Court might more or less engage with the question why that particular measure was strictly necessary compared to less intrusive alternatives such as contact tracing that has been already used in medicine or bluetooth tracking for example. Of the various tracking technologies, bluetooth location tracking certainly has the potential of being one of the least invasive purely based on its relatively low transmission radius, notwithstanding the fact that it might still entail significant drawbacks.
Finally, any measures introduced during the derogation period will still have to respect the essential core of or essential guarantees enshrined in Article 8 of the Convention (Delfi AS v. Estonia (GC) ). The Court has repeatedly underlined that the “very essence of the Convention is respect for human dignity and human freedom” (Pretty v. UK ).
In addition, the Court has also underlined the need to ensure any restrictions “that are imposed do not curtail [Article 8] to such an extent as to impair its very essence and deprive it of its effectiveness” (Altay v. Turkey (No. 2) ). In S. and Marper v. UK, where the Court dealt with the measure of DNA retention for the purposes of detecting and prosecuting crime, it noted that:
the protection afforded by Article 8 of the Convention would be unacceptably weakened if the use of modern scientific techniques in the criminal-justice system were allowed at any cost and without carefully balancing the potential benefits of the extensive use of such techniques against important private-life interests. In the Court’s view, the strong consensus existing among the Contracting States in this respect is of considerable importance and narrows the margin of appreciation left to the respondent State in the assessment of the permissible limits of the interference with private life in this sphere. 
Even in times of state of emergency, the European Court and the UN Human Rights Committee has examined in detail the scope of the measures when assessing the compatibility of the derogation with the Convention (Brannigan and McBride v. UK (Plenary) ) and the measures cannot render the provision inapplicable (GC29 ).
In all, it is likely that many of the states that have already derogated from Article 8 of the Convention will gradually follow suit and start introducing various location tracking and/or contact tracing measures. Whether these measures will be introduced during a state of declared emergency or whether states will revoke the derogations and then introduce measures remains to be seen. Same goes for the Court’s response to blanket measures under derogation should a potential case reach Strasbourg. However, what we can be confident about is that the deployment of such measures, that rely on the indiscriminate collection and retention of individuals’ location data, and any other measure under the state of emergency should respect the core essence of the Convention, namely respect for human dignity, irrespective of whether their use is justified under a derogation or the limitations clause.
On the contrary, the notifications submitted so far seem to be following a catch-all approach of trying to a priori justify any blanket or indiscriminate measure introduced under these circumstances. Such catch-all approaches do not only highlight the risks of abuse associated with public crises but might also effectively compromise governments’ arguments with regard to blanket measures. For example, if these states accept that a derogation from Article 8 is necessary, in order to introduce COVID-19 mass surveillance measures, then they seem to accept that similar communications surveillance measures for national security purposes cannot adhere to the Convention requirements in absence of a valid derogation from Article 8.
The views expressed in this post are the authors’ own and made in their individual capacity and not in their capacity as employees of Privacy International.
Dr Ilia Siatitsa is a Programme Director and Legal Officer at Privacy International (PI). She leads one of the four strategic areas at PI and works on research and litigation related to surveillance and technologies. Ilia is a qualified lawyer in Greece and holds a PhD in International Law from the Faculty of Law of the University of Geneva. In the past, she has been a Research Fellow at the Geneva Academy of International Humanitarian Law and Human Rights, as well as a member of the research team of the Big Data, Human Rights and Technology Project housed at the Human Rights Centre of the University of Essex.
Ioannis Kouvakas is a Legal Officer at Privacy International (PI) and works on a variety of issues at the intersection of PI’s government and corporate exploitation programmes. He is also a PhD candidate at Vrije Universiteit Brussel (VUB, Faculty of Law and Criminology). His doctoral research focuses on new technologies, national security and judicial deference. He holds a Law Degree from the University of Athens (Greece) and an LL.M. in Human Rights Law (University College London).