Location, Location, Location: The Whereabouts Rule and the Right to Privacy

The new World Anti-Doping Agency code came into effect on 1st January 2009. It introduced a new international standard for testing which requires athletes in the Registered Testing Pool of their country – usually, the top athletes in an Olympic sport or the leading players in a team sport – to give three-months’ advanced notice of their ‘whereabouts’ for one hour per day, 365 days a year. The rationale put forward for the rule is that the availability of the athletes for out-of-competition testing is an essential element in the fight against doping. The article assesses whether a challenge to the rule could succeed under Article 8 of the European Convention on Human Rights. It explores the possibility of a UK athlete enforcing this right in the domestic courts against UK Athletics, and argues that, despite a tendency for the courts to give a narrow interpretation to the term ‘public authority’ under section 6(3)(b) of the Human Rights Act 1998, the enforcement of the whereabouts requirement could amount to a function of a public nature. In terms of the substantive Article 8 right, the article asks whether providing whereabouts information infringes an athlete’s right to privacy and, if it does, whether the infringement of this right can be justified. It argues that, despite pursuing a legitimate objective of protecting the rights of ‘clean athlete’, it may be a disproportionate response to the problem.