WIEDER AND GUARNIERI v. THE UNITED KINGDOM JUDGMENT
Kingdom Government by the NSA was assumed to have been lawfully
obtained.
20. The IPT handed down its judgment on 16 May 2016. At the outset, it
noted that, encouraged by the jurisprudence of the Court, it had approached
the question of locus standi on a very open-minded basis and without
requiring from its complainants the kind of arguable case they would need to
present a case in the High Court. It therefore concluded that the judgments in
the Liberty proceedings were not the finishing point but rather the starting
point for the potential investigation of any proper individual claims. Just as
the complainants in the Liberty proceedings, who had established sufficient
locus to bring the claim, were entitled, after the legal issues had been decided,
to have investigations of their own individual circumstances, so should be the
case of any other such complainant who could satisfy the locus requirement.
To not look at the individual cases of other complainants who could establish
the relevant locus would be contrary to Roman Zakharov v. Russia ([GC],
no. 47143/06, ECHR 2015) and Weber and Saravia v. Germany ((dec.),
no. 54934/00, ECHR 2006‑XI), and to its own duty under RIPA. Moreover,
it would undermine the position adopted in Kennedy v. the United Kingdom
(no. 26839/05, 18 May 2010), in which the Court approved the role of the
IPT to such an extent that in Roman Zakharov it was prepared to recognise
that in consequence there could be a different approach to locus in claims
before it. Therefore, whatever the purpose of Privacy International’s
campaign, the IPT was satisfied that each subsequent application had to be
considered on its merits.
21. As for victim status, it considered that the appropriate test was
whether the applicants could show that due to their personal situation they
were potentially at risk of being subjected to the measures complained of (see
Roman Zakharov, cited above, § 171). Applying this test, it was persuaded
that all six of the represented complainants satisfied it in respect of the
section 8(4) regime; and – albeit with a significant element of doubt that all
save for Mr Wieder, who was a US citizen, satisfied it in respect of the receipt
of intelligence from the NSA. It did so on the basis that, in addition to the
mere assertion – taken from the standard application form on Privacy
International’s website – that they believed that the authorities “may have
unlawfully intercepted, solicited, accessed, obtained, processed, used, stored
and/or retained my information and/or communications, whatever the source
of that information or communications may be”, all six complainants had
provided supplemental information, including in relation to these two
applicants that Mr Wieder was “an IT professional and independent
researcher, again substantially involved in intelligence and security matters”
and Mr Guarneri was “an independent privacy and security researcher,
materially involved in intelligence matters, living in a Council of Europe
state”. However, as it did not consider there to be sufficient information on
Privacy International’s standard application form to demonstrate victim
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