Iain G. Mitchell QC involved in CCBE Intervention in ECHR case concerning bulk email interception
15th July 2021
In the case of Härting v Federal Republic of Germany, presently pending before the European Court of Human Rights, the Claimant, a lawyer, alleges that the Federal Republic of Germany has infringed his right to respect for his private correspondence under Article 8 of the European Convention on Human Rights.
In particular, he alleges that the German security services operate a system of bulk interception of emails sent from Germany. Those containing key words are flagged and read by an intelligence officer who determines whether further action and/or surveillance is required, and the copies of those emails not warranting such action are immediately destroyed. The key words are not listed by the intelligence authority and a person whose emails have been read and in respect of which there has been no further action cannot have any knowledge as to whether his emails have been read or not. Under German domestic law, unless he can demonstrate that his correspondence has been intercepted, he has no locus to sue.
The questions before the Court concern both the issue of locus and the substantive conformity of the interception regime with article 8. The latter issue assumes greater importance as the Claimant is a lawyer and many of his emails attract legal professional privilege.
At the Invitation of the Court, the CCBE has submitted a formal Intervention in the case. The solicitors acting are CMS Law, Hamburg, with Iain G. Mitchell QC being primarily responsible for.