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The European Court of Human Rights (ECtHR) recently judged against allowing law enforcement to bypass end-to-end encryption:

The European Court of Human Rights (ECHR) (sic) has ruled that weakening end-to-end encryption disproportionately risks undermining human rights. The international court's decision could potentially disrupt the European Commission's proposed plans to require email and messaging service providers to create backdoors that would allow law enforcement to easily decrypt users' messages.

However the UK recently pass into law the Online Safety Act 2023 which seems to require providers to allow the police to read encrypted messages:

By far the most divisive clause out of the more than 300 pages of the Online Safety Act is Section 122, which has been widely interpreted as compelling companies to scan users’ messages to make sure that they aren’t transmitting illegal material. That would be incredibly difficult—perhaps even impossible—to do without breaking the end-to-end encryption on platforms such as WhatsApp and Signal.

The ECtHR is not an EU institution, and the UK did not withdraw from it as part of Brexit, so the judgement does have force in the UK. Is there any way these two positions can be reconciled or does the UK now have to amend its law?

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    I suspect this is more about Section 121 than Section 122 of the law - Parliament has a habit of adding and removing clauses of proposed bills, so the numbers people campaign and lobby on will later turn out to be different.
    – Henry
    Commented Feb 17 at 3:15
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    FYI, it's common practice to refer to the Convention as the ECHR and the court as the ECtHR, to differentiate them.
    – JBentley
    Commented Feb 17 at 10:01
  • @JBentley Thanks, I'll correct that. Commented Feb 17 at 10:42
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    As a note, the UK takes parliamentary sovereignty extremely seriously and has a heavily dualist approach to international law, which means that while the government can frequently have a duty to do something, parliament retains the (thankfully usually theoretical) right to totally ignore those responsibilities.
    – origimbo
    Commented Feb 17 at 15:27
  • @origimbo Interestingly, France ignored an ECtHR judgement preventing the deportation of an Uzbek citizen and deported them anyway. The Conseil d'Etat, France's top administrative court recently ordered that the person should be allowed to France. lemonde.fr/en/france/article/2023/12/13/… Commented Feb 18 at 21:15

2 Answers 2

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A European Court of Human Rights judgment against another state doesn't legally oblige the UK to amend its law. European Convention on Human Rights Article 46.1 (my emphasis):

The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties

This European Court of Human Rights judgment is with regard to a Russian law. To have the court rule on a UK law, someone would have to sue the UK. If the UK lost, then it must abide by the judgment.

If someone were to bring domestic legal proceedings in the UK and cite this judgment, the domestic court must "take into account" the judgment, although that doesn't mean the court is required to follow it.

While this judgment may be useful in a future case against the UK law, it does not oblige the UK to do anything.

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    "This European Court of Human Rights judgment is with regard to a Russian law" It's (maybe also?) about the EU commission's plan to do similar things as what the UK's online safety act would do.
    – njzk2
    Commented Feb 16 at 22:59
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    @Lag Does the doctrine of legal precedent apply in the ECtHR? lexisnexis.co.uk/legal/glossary/doctrine-of-precedent Commented Feb 17 at 10:41
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    @DaveGremlin not in the common law sense of forcing the court's hand, but it does try (and the contracting parties prefer it to be) consistent in its decisions.
    – origimbo
    Commented Feb 17 at 15:10
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    @DaveGremlin The Convention doesn't require the Court to follow precedent. The Court has adopted following precedent for the sake of consistency and legal certainty and claims to only depart from precedent with good reason.
    – Lag
    Commented Feb 17 at 16:51
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    @njzk2 The Arstechnica article mentions the Commission's plans. The judgement doesn't mention the Commission. The case is Podchasov v. Russia. Russia must abide by this judgment. It might be good if other bodies abide it too. But the Convention does not require them to abide by this judgment.
    – Lag
    Commented Feb 17 at 16:56
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In addition to the points raised in Lag's answer, if it is possible to interpret UK legislation in a way which is compatible with the ECHR, then the domestic Courts must do so. See Section 3(1) of the Human Rights Act 1998:

So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.

This applies in cases where a domestic Court could reach two different conclusions where one is compatible with the ECHR and the other is not.

If it isn't possible to do this, then the High Court (and above) can make a "declaration of incompatibility" under Section 4. This isn't legally binding, but by convention is supposed to put pressure on the government to amend the law, and this is usually what happens (eventually). A declaration of incompatibility also triggers Section 10 which enables a government minister to amend the incompatible legislation without having to go through the usual legislative process.

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    Also, section 121 of the Online Safety Act doesn't, by itself, compel companies to do anything, it merely confers a power on OfCom to issue a notice that compels a company to do stuff. In deciding what to put in any such notice, OfCom will be bound by section 6 of the Human Rights Act. Commented Feb 19 at 0:09
  • @DanielHatton That's a great point, and probably the best answer if you feel like posting it. If not, I'll edit it into mine later.
    – JBentley
    Commented Feb 19 at 7:37

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