BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT –
SEPARATE OPINIONS
technically feasible to sustain, and is therefore meaningless. The territorial
jurisdiction-based distinction between external and internal communications
is inherently contradictory with the reality of today’s flow of
communication on the Internet, where a Facebook message exchanged
within a group of friends in London is routed via California and is therefore
“external” to the United Kingdom118. As the Law Society reminded the
Court, confidential communications between lawyers and clients, even
when both were in the United Kingdom, could be intercepted under the
section 8(4) regime119. In practice, the Government’s expansive concept of
external communications also includes cloud storage, Google searches,
browsing and social media activities120. For many types of communication,
it may not even be possible to distinguish between external and internal
communications since the location of the intended recipient will not always
be apparent from the related communications data. The factual analysis of
whether a particular communication is external or internal may in individual
cases only be possible to carry out with the benefit of hindsight121. Today’s
closer interconnectedness of living and communication conditions across
borders is certainly not an argument for treating external and internal
communications differently, but rather the opposite. This, of course, should
not be understood as an invitation to lower the level of protection of internal
communications, but to increase the level of protection of external
communications.
41. In this regard, it is not evident that a communication between a
person in Strasbourg and a person in London should be entitled to more
limited protection under the Convention than a communication between two
persons in London. There does not, therefore, seem to be any objective
justification for treating such persons differently, other than the assumption
that threats come more often than not from abroad, and that foreigners are
less deserving of trust than nationals, because they pose a more serious risk
to national security and public safety than nationals, thereby justifying the
need for monitoring communications sent or received outside the British
Islands122. This is also reflected in the way foreigners are treated in court
Islands.” (see their Observations before the Grand Chamber of 2 May 2019, p. 20).
118 Paragraph 75 of this judgment.
119 Paragraph 321 of this judgment. See also the IPT judgment Belhadj & Others v the
Security Service & Others, IPT/13/132-9/H.
120 Paragraph 75 of this judgment. This practice seems to contradict paragraph 6.5 of the IC
Code.
121 The respondent Government themselves admitted this (see their Observations before the
Grand Chamber of 2 May 2019, p. 37).
122 It does not suffice to argue that since the British legislation “prevents intercepted
material from being selected for examination according to a factor ‘referable to an
individual who is known to be for the time being in the British Islands’, any resulting
difference in treatment would not be based directly on nationality or national origin, but
rather on geographical location”, as the Chamber judgment did (§ 517), for the obvious
191