BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT –
SEPARATE OPINIONS
everyone as a potential suspect, whose data must be stored, analysed and
profiled89. Of course the impact of such a change on the innocent could
eventually be mitigated by a cohort of more or less flexible adjudicators and
regulators and a plethora of more or less convenient laws and codes of
practice, but a society built upon such foundations is more akin to a police
state than to a democratic society. This would be the opposite of what the
founding fathers wanted for Europe when they signed the Convention in
1950.
23. Thus any target of surveillance must always be identified or
identifiable in advance based on reasonable suspicion. To leave no doubt,
bulk interception should be admissible only on the basis of strong selectors
aimed at the communications from and to the targeted intercept subject
when there is a reasonable suspicion that he or she is involved in the legally
defined categories of serious offences or activities which are harmful to
national security without necessarily being criminal90.
24. Judicial warranting should extend to the authorisation of surveillance
of communications or related communications data, including privileged
and confidential data, with the sole exception of urgent cases, when the
competent judge is not immediately available, where authorisation may be
given by a public prosecutor, subject to the competent judge’s subsequent
endorsement.
25. Domestic law should provide for a specific regime of protection for
privileged professional communications of parliamentarians, medical
doctors, lawyers and journalists91. Since indiscriminate and suspicionless
bulk collection of communications would frustrate the protection of legally
That is why I believe that the massive collection of data of innocent people accepted by
the Court in the present judgment falls foul of the principles established in S and Marper
v. the United Kingdom, nos. 30562/04 and 30566/04, § 135, 4 December 2008; Shimovolos
v. Russia, no. 30194/09, §§ 68 and 69, 21 June 2011; M.K. v. France, no. 19522/09, § 37,
18 April 2013; and most importantly, Mustafa Sezgin Tanrıkulu v. Turkey, cited above,
§§ 57-59.
90 This is the universal standard as compiled in the United Nations Compilation of good
practices on legal and institutional frameworks and measures that ensure respect for human
rights by intelligence agencies while countering terrorism, including on their oversight,
17 May 2010 (A/HRC/14/46): “Practice 21. National law outlines the types of collection
measures available to intelligence services; the permissible objectives of intelligence
collection; the categories of persons and activities which may be subject to intelligence
collection; the threshold of suspicion required to justify the use of collection measures; the
limitations on the duration for which collection measures may be used; and the procedures
for authorising, overseeing and reviewing the use of intelligence-collection measures.”
91 Other than Sanoma Uitgevers B.V. v. the Netherlands [GC], no. 38224/03, §§ 90-92,
14 September 2010, see European Union Fundamental Rights Agency (FRA), Surveillance
by intelligence services: fundamental rights safeguards and remedies in the EU, volume II:
Field perspectives and legal updates, 2017, p. 12: “EU Member States should establish
specific legal procedures to safeguard the professional privilege of groups such as members
of parliament, members of the judiciary, lawyers and media professionals. Implementation
of these procedures should be overseen by an independent body.”
89
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