BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT –
SEPARATE OPINIONS
II. DECONSTRUCTION OF THE COURT’S PRO AUTORITATE
REGIME OF BULK INTERCEPTION
A. Vague language
2. I regret to state from the outset that the Court’s language is
inadmissibly vague, as will be demonstrated in this opinion. While
sometimes this language reflects the Court’s deliberate intention to accord
leeway for a discretionary execution of this judgment by the respondent
State, at other times it shows the judges’ hesitation in the performance of
their adjudicatory function. In so doing, they not only weaken the Court’s
authority, but water down the standard-setting value of this judgment.
3. Since the legal concepts of European human rights law are
autonomous, in the sense that they are not strictly dependent on the meaning
and scope of the corresponding domestic legal concepts, and in view of the
novel character of the legal issues at stake in the present Grand Chamber
case, the Court should have established, in black and white, the meaning of
the fundamental legal concepts that it uses in the present judgment2,
regardless of their meaning in the Regulation of Investigatory Powers Act
2000 (RIPA), the Interception of Communications Code of Practice
(IC Code) or any “below the waterline” arrangements. For the sake of
conceptual clarity, I will use the terms listed below with the following
meanings:
(a) “intercept subject” to include natural persons and legal entities, including
public services, private corporations, NGOs, and any civil society organisations,
whose electronic communications may be intercepted, or have been intercepted3;
(b) “intercepted material” or “bulk material” to encompass the content of the
electronic communications and related communications data that have been collected
by means of bulk interception4;
(c) “related communications data” to include the data necessary for locating the
source of an electronic communication and its destination, for determining the date,
time, duration and type of communication, for identifying the communications
equipment used, and for locating the terminal equipment and communications, data
which comprise, inter alia, the name and address of the user, the telephone numbers
of the caller and the person called, and the IP address for Internet services5;
arguments, I can now affirm that I have not moved an inch from my previous position. In
fact, I am now even more convinced that what I wrote in 2016 is unfortunately still very
much up to date. Therefore the present opinion should be read in conjunction with what I
wrote five years ago.
2 This good practice can be found, for instance, in Rohlena v. the Czech Republic [GC],
no. 59552/08, 27 January 2015.
3 The domestic concept is similar. See section 20 of RIPA.
4 The domestic concept is different. See section 20 of RIPA.
5 The domestic concept is more limited. See section 20 of RIPA. Section 21 (4), (6) and (7)
provides for the concept of “communications data”.
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