In 2009, French police issued a court order to a telephone operator, to gather records of incoming and outgoing calls and details of cell towers that could be used to track the location of mobile phones, used by two brothers suspected of drug trafficking. In 2010, the same police were also given permission by a judge to fasten a tracking device to the brothers’ car, to secretly monitor their movements. The Ben Faiza brothers appealed to the European Court in Strasbourg, on the grounds that their right to a private life had been breached by the two monitoring activities of the French authorities.
In February 2018, the Court decided that Article 8 had not been breached in respect of the telephone monitoring, but it had been breached in respect of the tracking of the car. (You can read a summary of the case here)
So, why was one monitoring activity allowed, but not the other?
Let’s look at Article 8 itself:
The Court decided that the monitoring of telephone calls, whilst usually in breach of Article 8 (See Copland v Uk ), did not breach Article 8 in this case. Article 8 is a “qualified right”, meaning that public authorities have legal permission to restrict them, for the reasons outline above. This was was the case here. The cell towers triggered by the calls made to and from the mobile phones were used to track the previous movements of the brothers. This was seen by the Court as reasonable and legally allowable in the circumstances. Retrospective geo-locating of a person is not as intrusive as real-time geo-locating.
If, however, the cell towers had been used to track the real-time movements of the brothers, then this may not have been legally allowed. This was part of the reasoning for the GPS tracking of the car not being allowed under Article 8, as it could be used to track the brothers in real-time.
So how might this affect ordinary GPS users in the UK?
There have been claims that GPS trackers have been used by ex-partners to effectively stalk their victims. Parents have used them to snoop on their teenage children. You can read more here.
In your exam, make sure you can distinguish between legal and illegal restrictions of the right to privacy. If you need to, give hypothetical alterations to the facts in scenario questions, to show the full extent of your knowledge.
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