BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
amounted to an internationally wrongful act for the State responsible for the
services, the receiving State was aware of the circumstances of the
internationally wrongful act, and the act would have been internationally
wrongful if committed by the receiving State (Article 16); or if the receiving
State exercised direction or control over the foreign Government
(Article 17). Secondly, according to the Court’s case-law the interception of
communications by a foreign intelligence service could only fall within the
receiving State’s jurisdiction if that State was exercising authority or control
over the foreign intelligence service (see, for example, Al-Skeini and Others
v. the United Kingdom [GC], no. 55721/07, §§ 130-139, ECHR 2011 and
Jaloud v. the Netherlands [GC], no. 47708/08, §§ 139 and 151
ECHR 2014).
496. The Grand Chamber agrees with the Chamber that none of these
elements were present in the situation under consideration and, indeed, in
their pleadings before the Grand Chamber the applicants have not suggested
that they were. Therefore, any interference with Article 8 of the Convention
could only lie in the initial request and the subsequent receipt of intercept
material, followed by its subsequent storage, examination and use by the
intelligence services of the receiving State.
497. The protection afforded by the Convention would be rendered
nugatory if States could circumvent their Convention obligations by
requesting either the interception of communications by, or the conveyance
of intercepted communications from, non-Contracting States; or even,
although not directly in issue in the cases at hand, by obtaining such
communications through direct access to those States’ databases. Therefore,
in the Court’s view, where a request is made to a non-contracting State for
intercept material the request must have a basis in domestic law, and that
law must be accessible to the person concerned and foreseeable as to its
effects (see Roman Zakharov, cited above, § 228). It will also be necessary
to have clear detailed rules which give citizens an adequate indication of the
circumstances in which and the conditions on which the authorities are
empowered to make such a request (see Roman Zakharov, cited above,
§ 229; Malone, cited above, § 67; Leander, cited above, § 51; Huvig, cited
above, § 29; Kruslin, cited above, § 30; Valenzuela Contreras, cited above,
§ 46; Rotaru, cited above, § 55; Weber and Saravia, cited above, § 93; and
Association for European Integration and Human Rights and Ekimdzhiev,
cited above, § 75) and which provide effective guarantees against the use of
this power to circumvent domestic law and/or the States’ obligations under
the Convention.
498. Upon receipt of the intercept material, the Court considers that the
receiving State must have in place adequate safeguards for its examination,
use and storage; for its onward transmission; and for its erasure and
destruction. These safeguards, first developed by the Court in its case-law
on the interception of communications by Contracting States, are equally
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