BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT –
SEPARATE OPINIONS
JOINT PARTLY CONCURRING OPINION OF
JUDGES LEMMENS, VEHABOVIĆ AND BOŠNJAK
1. In the present case, we agree with the majority on all counts in the
operative part of the judgment, except for operative points 3 (no violation of
Article 8 of the Convention in respect of the receipt of intelligence from
foreign intelligence services) and 5 (no violation of Article 10 of the
Convention in respect of the receipt of intelligence from foreign intelligence
services). To show where we disagree with the outcome of the case, we are
submitting a dissenting opinion jointly with our colleague Judge Ranzoni. In
addition, we are submitting this concurring opinion to underline that while
the present judgment as a whole is elegantly structured and largely clear in
its message, it has also missed an excellent opportunity to fully uphold the
importance of private life and correspondence when faced with interference
in the form of mass surveillance.
I.
INTRODUCTORY REMARKS
2. This case is about a balancing exercise in which legitimate interests
pursued by the Contracting States have to be weighed against human rights
and fundamental freedoms, notably those protected by Article 8 of the
Convention. At the start of its assessment (paragraphs 322 and 323 of the
judgment), the Grand Chamber extensively describes the nature of the
modern threats facing the Contracting States and recognises how valuable
bulk interception can be in identifying and preventing those threats.
Furthermore, the judgment underlines a need for secrecy of operations in
this domain which it considers to be legitimate, meaning that little if any
information about a given scheme will be available to the public. While one
may subscribe, to a certain extent, to this description of the legitimate
interest in operating a bulk interception regime, there is no similar emphasis
on the importance of privacy or any other private interest in those same
preliminary remarks. Although this has no direct bearing upon the
assessment of the bulk interception system under scrutiny, we would have
preferred a more balanced introduction to this assessment.
3. Before embarking on an analysis of what we consider to be the weak
points of the present judgment, it is worthwhile remembering that privacy is
a fundamental precondition for a variety of fundamental individual interests,
but also for the existence of a democratic society. It is essential for a
person’s well-being, autonomy, self-development, and ability to enter into
meaningful relationships with other persons. It is also a necessary
precondition for the enjoyment of civil rights and consequently for a
person’s status as a free and equal member of a democratic society.
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