BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT –
SEPARATE OPINIONS
State’s territorial jurisdiction. On the contrary, these authorities confirm that
bulk surveillance is mainly aimed at people within the territorial jurisdiction
of the State44. The Government themselves admitted that the number of
queries made against related communications data under section 8(4) of
RIPA in respect of people who are known to be in the United Kingdom –
thus as an internal surveillance tool – is up to several thousand per week45.
10. The second argument departing from the previous case-law is that
the Council of Europe member States “appear to use”46 bulk interception for
purposes other than crime investigation. The Court’s line of argument seems
to be the following: since targeted interception is “for the most part”47
employed in bulk interception for the purposes of crime detection and
investigation, but bulk interception may also be used for the purposes of
foreign intelligence gathering, where there may be neither a specific target
nor an identifiable offence, bulk interception is not (and should not be)
governed by the same standards of targeted surveillance48. This is yet
another argument that is not proven by the Court, which chose to decide
based on appearances, rather than facts.
11. In reality, non-targeted bulk interception is prohibited explicitly or
implicitly in twenty-three European States49. As PACE50 and the Council of
Europe Human Rights Commissioner51 have forcefully demonstrated,
indiscriminate mass communications surveillance has proven to be
ineffective for the prevention of terrorism and therefore is not only
dangerous for the protection of human rights but also a waste of resources.
Thus if there is a consensus in Europe on non-targeted bulk interception, the
consensus is that it should be prohibited, but this has been ignored by the
Court. Only seven Council of Europe member States operate such regimes52,
44 See below the full discussion on the inability of the territorial jurisdiction-based
distinction between internal and external communications to justify bulk interception of the
latter.
45 See the respondent Government’s Observations before the Grand Chamber of 2 May
2019, p. 42 (“many thousands in any given week in relation to individuals known or
believed to be in the UK alone”).
46 Paragraph 345 of this judgment.
47 Ibid.
48 It should be noted that the Governments of France and the Netherlands insisted, like the
Chamber, that it was wrong to assume that bulk interception constituted a greater intrusion
into private life than targeted interception (paragraphs 300 and 306 of this judgment).
49 As the Court’s research report itself concluded regarding Albania, Andorra, Austria,
Belgium, Bosnia and Herzegovina, Croatia, the Czech Republic, Greece, Ireland, Iceland,
Italy, Liechtenstein, Moldova, Monaco, Montenegro, North Macedonia, Poland, Portugal,
Romania, San Marino, Serbia, Turkey and Ukraine. Thus paragraphs 242-246 of the
judgment do not portray a correct picture of the European landscape.
50 PACE Resolution 2031 (2015).
51 Council of Europe Human Rights Commissioner’s Memorandum on Surveillance and
Oversight Mechanisms in the United Kingdom, CommDH (2016)20, May 2016, p. 10.
52 Paragraph 242 of this judgment.
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