Notification, an important safeguard against the improper use of surveillance – finally recognized in case law and EU law
According to the European Court of Human Rights, the notification of individuals of surveillance measures is both an essential safeguard against the abuse of monitoring powers and an important part of the right to an effective remedy before the courts. However, the right of an individual to be informed that the police or the secret service is collecting data about them, or that particular surveillance measures have been carried out (telephone tapping, visual or video surveillance, covert installation of monitoring software on a computer etc.) is not harmonised in the EU. National regulatory controls in this area thus vary between Member States and there is a lack of regulatory cohesion at the EU level. This article analyses the current provisions within both the EU and Council of Europe regulatory frameworks concerning notification requirements after data have been collected and after surveillance has been carried out. It also examines future regulation in this field including the EU Commission’s proposals to revise the current Data Protection Directive 95/46/EC and the Framework Decision 2008/977/EC for data processing concerning police and judicial co-operation.