BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
into the public domain (for example, by way of inclusion in a relevant statutory Code
of Practice).”
B. The IPT’s first judgment of 5 December 2014
37. The IPT issued its first judgment on 5 December 2014. The
judgment addressed the arrangements then in place for intercepting
communications and receiving communications intercepted by foreign
intelligence services.
1. The PRISM issue
38. The IPT accepted that the PRISM issue engaged Article 8 of the
Convention, albeit at a “lower level” than the regime under consideration in
Weber and Saravia v. Germany (dec.), no. 54934/00, ECHR 2006‑XI. As a
consequence, the authorities involved in processing communications
received from foreign intelligence services had to comply with the
requirements of Article 8, particularly in relation to their storage, sharing,
retention and destruction. In the IPT’s view, following Bykov v. Russia
[GC], no. 4378/02, §§ 76 and 78, 10 March 2009 and Malone v. the United
Kingdom, 2 August 1984, Series A no. 82, in order for the interference to be
considered “in accordance with the law”, there could not be unfettered
discretion for executive action; rather, the nature of the rules had to be clear
and the ambit of the rules had – in so far as possible – to be in the public
domain. However, it considered it plain that in the field of national security,
much less was required to be put in the public domain and the degree of
foreseeability required by Article 8 had to be reduced, otherwise the whole
purpose of the steps taken to protect national security would be at risk
(citing Leander v. Sweden, 26 March 1987, § 51, Series A no. 116).
39. The IPT continued:
“41. We consider that what is required is a sufficient signposting of the rules or
arrangements insofar as they are not disclosed ... We are satisfied that in the field of
intelligence sharing it is not to be expected that rules need to be contained in statute
(Weber) or even in a code (as was required by virtue of the Court’s conclusion in
Liberty v. [the United Kingdom, no. 58243/00, 1 July 2008]). It is in our judgment
sufficient that:
i) Appropriate rules or arrangements exist and are publicly known and confirmed to
exist, with their content sufficiently signposted, such as to give an adequate indication
of it (as per Malone ...).
ii) They are subject to proper oversight.”
40. The IPT noted that arrangements for information sharing were
provided for in the statutory framework set out in the Security Service Act
1989 (see paragraphs 105-106 below) and the Intelligence Services Act
1994 (see paragraphs 107-110 below). It further referred to a witness
statement made in the above-mentioned Liberty proceedings by Charles
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