BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
domestic law required that any regime permitting the authorities to access
data retained by CSPs should limit access to the purpose of combating
“serious crime”, and that access should be subject to prior review by a court
or independent administrative body. As the predecessor regime suffered
from the same “flaws” as its successor, the Chamber found that it could not
be in accordance with the law within the meaning of Article 8 of the
Convention (see paragraphs 465-468 of the Chamber judgment).
2. The parties’ submissions
520. The parties made no further submissions before the Grand Chamber
in respect of this complaint.
3. The Court’s assessment
521. The Government did not contest the Chamber’s findings before the
Grand Chamber. Furthermore, the latter finds no ground on which to
disagree with the Chamber’s conclusions.
522. Accordingly, the Court considers that in the present case there was
a violation of Article 8 of the Convention on account of the fact that the
operation of the regime under Chapter II of RIPA was not “in accordance
with the law”.
B. Article 10 of the Convention
523. The applicants in the second of the joined cases also complained
under Article 10 of the Convention about the regime for the acquisition of
communications data from CSPs.
1. The Chamber judgment
524. The Chamber acknowledged that the Chapter II regime afforded
enhanced protection where data were sought for the purpose of identifying a
journalist’s source. In particular, paragraph 3.77 of the Acquisition of
Communications Data Code of Practice provided that where an application
was intended to determine the source of journalistic information, there had
to be an overriding requirement in the public interest, and such applications
had to use the procedures of the Police and Criminal Evidence Act 1984
(“PACE”) to apply to a court for a production order to obtain these data.
Pursuant to Schedule 1 to PACE, an application for a production order was
made to a judge and, where the application related to material that consisted
of or included journalistic material, the application had to be made inter
partes. Internal authorisation could only be used if there was believed to be
an immediate threat of loss of human life, and that person’s life could be
endangered by the delay inherent in the process of judicial authorisation
(see paragraph 498 of the Chamber judgment).
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