BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT –
SEPARATE OPINIONS
(vi) these rules apply without distinction between solicited and unsolicited data,
“raw” (unevaluated) and evaluated data.
(k) The duty to notify the intercept subject when the interception is
over, save where the interests of national security would be endangered
by such disclosure, in which case the competent judge must be
empowered to review on his or her own initiative (ex proprio motu) or on
the initiative of a third party (for example, a public prosecutor) the entire
process of interception in order to determine whether the data was
obtained lawfully and whether it should be kept or destroyed, the
intercept subject then being defended by a privacy lawyer.
(l) Special guarantees with regard to the secrecy of professional
communications of privileged communicants such as parliamentarians,
medical doctors, lawyers, journalists and priests.
(m) The guarantee that a criminal conviction may not be based
solely or to a decisive extent on the evidence collected by means of bulk
interception.
(n) These principles apply to surveillance conducted in the
Contracting Party’s own territory as well as to its surveillance performed
extraterritorially, regardless of the purpose for the surveillance, the state
of the data (stored or in transit), or the possession of the data (data held
in the intercept subject’s possession or in the possession of a service
provider).
(o) The State’s obligation to respect and fulfil individuals’ rights is
complemented by an obligation to protect individuals’ rights from abuse
by non-State actors, including corporate entities.
IV. CRITIQUE OF THE IMPUGNED UK BULK INTERCEPTION
REGIME
A. Bulk interception of communications under the RIPA 2000
35. Considering the above, I have a principled objection, well beyond
the Grand Chamber’s tenuous challenge, to the United Kingdom’s bulk
interception regime, as it stood on 7 November 2017, which means before
the full entry into force of the Investigatory Powers Act 2016 (IPA)109.
36. The purpose of bulk interception in detecting and investigating
serious crime as defined under section 81(2)b of RIPA is definitively not
compatible with the concept of serious crime prevailing in international law,
in so far as the domestic concept encompasses offences punishable by
imprisonment for a term of less than four years. Furthermore, the purpose of
safeguarding the economic well-being of the UK in so far as those interests
Paragraph 270 of this judgment. This means that, just like the Grand Chamber, I have
not taken into consideration the changes introduced by the IPA and the new 2018 IC Code.
They were not before this Court.
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