BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT –
SEPARATE OPINIONS
address this particular step in the bulk interception process in any way. We
consider this to be an important shortcoming of the judgment.
III. MINIMUM
SAFEGUARDS
PROTECTING
INDIVIDUALS
AGAINST ARBITRARY OR EXCESSIVE INTERFERENCE
13. In paragraph 335, the judgment outlines the Court’s case-law on six
minimum requirements that should be set out in domestic law in order to
avoid abuses of power in cases of interception of communications for the
purposes of criminal investigation. It further explains that, in
Roman Zakharov v. Russia ([GC], no. 47143/06, ECHR 2015), the Court
held that the same six minimum safeguards also applied in cases where the
interception was performed for reasons of national security. In the next step,
the Grand Chamber identifies a need to develop and adapt these
requirements to the specificities of bulk interception and, finally, outlines a
list of eight criteria which the domestic legal framework must clearly define
in order to comply with Article 8 of the Convention (paragraph 361 of the
judgment).
14. That list is very well supported by arguments and can certainly serve
as protection against arbitrariness and abuse. However, the criteria included
in this list:
(a) do not clearly serve as self-standing minimum standards, as any lack
of compliance with any of those standards appears to be “reparable” in the
process of a global assessment;
(b) require clear definition of particular safeguards in domestic law, but
do not set any minimum safeguards themselves; and
(c) do not provide for any clear substantive protection of an individual
against disproportionate interference, in particular at the stage of application
of strong selectors to the material gathered, and the procedural protection
provided by these criteria is also insufficient.
15. As to (a), we would like to turn the reader’s attention to
paragraph 360 of the judgment, announcing a need for a global assessment
of a particular bulk interception regime. While this may sound appealing, it
necessarily erodes the importance of each safeguard. By contrast, we
believe that each safeguard labelled as a minimum one can never be offset
by any counterbalancing factors provided in respect of some other criterion.
In other words, lack of compliance with a safeguard which is considered to
be a minimum one should automatically lead to a finding of a violation of
Article 8 of the Convention, regardless of whether a global assessment
might reveal a more positive picture. Regrettably, the majority do not
appear to have opted for such an approach. We would add that an approach
setting minimum standards as absolute limits, as thick red lines that may not
be crossed, would provide for a stricter and more foreseeable protection,
which is of utmost importance in a field where the action of the State
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