By Laureline Lemoine

On 13 February 2020, the European Court of Human Rights (ECtHR) issued its judgment in the case Gaughran v. The United Kingdom (UK), on the indefinite retention of personal data (DNA profile, fingerprints and photograph) of a man who had a spent conviction. The Court ruled that in the case of the applicant, the retention at issue constituted a disproportionate interference and therefore a violation of his right to respect for private life (Art. 8 of the European Convention on Human Rights) since the interference could not be regarded as necessary in a democratic society.

The Court relied much of its arguments on the S. and Marper v. The UK (2008) case where it found that the blanket and indiscriminate nature of the powers of retention of the fingerprints, cellular samples and DNA profiles of the applicants, suspected but not convicted of offences, as set out in the UK law, breached their right to respect of private life. Subsequently, the relevant legislation was amended in England and Wales, but not in Northern Ireland, where the applicant in the Gaughran case committed the criminal offence for which he was convicted.

Indefinite retention regime and lack of necessary and relevant safeguards

According to the ECtHR case law, the Court does not necessarily or solely focus on the duration of the retention period to assess the proportionality of a measure. The Court will rather look at whether the regime takes into account the seriousness of the offending and the need to retain the data, as well as the safeguards available to the individual.

In this case, because the UK chose to put in place a regime of indefinite retention, the Court argues that there is therefore “a need to for the State to ensure that certain safeguards were present and effective for the applicant” (para. 94).

The Court pointed out in this regard that the lack of any relevant safeguards. First, the biometric data and the photograph of the applicant were retained “without reference to the seriousness of his offence and without regard to any continuing need to retain that data indefinitely”. Moreover, the Court noted the absence of any real review available to the individual, as well as the police, which can only delete the data in exceptional circumstances (para. 94).

The UK overstepped the acceptable margin of appreciation

Part of the proportionality assessment is also looking at the margin of appreciation of the state. Similar to the national security argument, a wide margin of appreciation is often invoked by the governments to justify measures interfering with fundamental rights.

The Court found the margin to be way narrower than what the UK claimed, and still not wide enough to conclude that the retention was proportionate. Contrary to what the UK stated, the Court states (para. 82-84) that the majority of states have regimes in which there is a defined retention period. Furthermore, it states that the UK is one of the few of the Council of Europe jurisdictions to permit indefinite retention of DNA profiles, fingerprints and photographs of convicted persons.

Moreover, the UK claimed that indefinite retention measures were relevant and sufficient as the more data is retained, the more crime is prevented. This dangerous and false narrative was challenged by the Court as this would justify the “storage of information on the whole population and their deceased relatives, which would most definitely be excessive and irrelevant” (para. 89).

Beware of evolving technologies

One of the UK’s argument regarding the proportionality of the measure was that the applicant’s photograph was held on a local database and could not be searched against other photographs. However, the technology had developed since then, and the police is now able to apply facial recognition and facial mapping techniques to the applicant’s photograph by uploading it to a national database.

The potential use of facial recognition was influential in determining whether there had been an interference with the right to privacy. The Court also highlighted the risk of such evolving technologies, in relation to state powers. In this regard, the Court stresses the need to examine compliance with the right to privacy when “obscure powers” are vested in a state, “creating a risk of arbitrariness, especially where the technology available is continually becoming more sophisticated” (para. 88).

Because the applicant’s personal data has been retained indefinitely without consideration of the seriousness of his offence, the need for indefinite retention and without any real possibility of review, the Court held, unanimously, that there had been a violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights.

This judgment is especially relevant because it shows that blanket data retention policies without any safeguards breach the right to privacy of individuals, even when measures are considered to fall within the state’s discretion. This judgment could also impact ongoing discussions in the EU around future data retention legislation, as well as ongoing cases in the Court of Justice of the EU.

Judgment – Case of Gaughran v. The United Kingdom
https://hudoc.echr.coe.int/fre#{%22itemid%22:[%22001-200817%22]}

Press release: Indefinite retention of DNA, fingerprints and photograph of man convicted of drink driving breached his privacy rights (13.02.2020)
https://hudoc.echr.coe.int/fre#{%22itemid%22:[%22003-6638275-8815904%22]}

Data retention: “National security” is not a blank cheque (29.01.2020)
https://edri.org/data-retention-national-security-is-not-a-blank-cheque/

Indiscriminate data retention considered disproportionate, once again (15.01.2020)
https://edri.org/indiscriminate-data-retention-considered-disproportionate-once-again/

(Contribution by Laureline Lemoine, EDRi)