BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
capable of being interpreted only by a limited number of persons, can have
no bearing on that finding (see Amann v. Switzerland [GC], no. 27798/95,
§ 69, ECHR 2000-II and S. and Marper, cited above, §§ 67 and 75). Finally,
at the end of the process, where information about a particular person will
be analysed or the content of the communications is being examined by an
analyst, the need for safeguards will be at its highest. This approach of the
Court is in line with the finding of the Venice Commission, which in its
report on the Democratic Oversight of Signals Intelligence Agencies
considered that in bulk interception the main interference with privacy
occurred when stored personal data were processed and/or accessed by the
agencies (see paragraph 196 above).
331. Thus, the degree of interference with privacy rights will increase as
the process moves through the different stages. In examining whether this
increasing interference was justified, the Court will carry out its assessment
of the section 8 (4) regime on the basis of this understanding of the nature of
the interference.
(c) Whether the interference was justified
(i) General principles relating to secret measures of surveillance, including the
interception of communications
332. Any interference with an individual’s Article 8 rights can only be
justified under Article 8 § 2 if it is in accordance with the law, pursues one
or more of the legitimate aims to which that paragraph refers and is
necessary in a democratic society in order to achieve any such aim (see
Roman Zakharov, cited above, § 227; see also Kennedy v. the United
Kingdom, no. 26839/05, § 130, 18 May 2010). The wording “in accordance
with the law” requires the impugned measure to have some basis in
domestic law (as opposed to a practice which does not have a specific legal
basis – see Heglas v. the Czech Republic, no. 5935/02, § 74, 1 March 2007).
It must also be compatible with the rule of law, which is expressly
mentioned in the Preamble to the Convention and inherent in the object and
purpose of Article 8. The law must therefore be accessible to the person
concerned and foreseeable as to its effects (see Roman Zakharov, cited
above, § 228; see also, among many other authorities, Rotaru, cited above,
§ 52; S. and Marper, cited above, § 95, and Kennedy, cited above, § 151).
333. The meaning of “foreseeability” in the context of secret
surveillance is not the same as in many other fields. In the special context of
secret measures of surveillance, such as the interception of communications,
“foreseeability” cannot mean that individuals should be able to foresee
when the authorities are likely to resort to such measures so that they can
adapt their conduct accordingly. However, especially where a power vested
in the executive is exercised in secret, the risks of arbitrariness are evident.
It is therefore essential to have clear, detailed rules on secret surveillance
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