BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT –
SEPARATE OPINIONS
when they want to uphold their privacy rights. The IPT does not accept
complaints from applicants outside the national territory123. This
foreigner-unfriendly Weltanschauung could not be more alien to the spirit
and letter of the Convention124. The Convention places at its centre the
individual, not the citizen of a State, which means that Convention rights as
rights of the individual ought to provide protection whenever a Contracting
Party acts and thus potentially creates a need for protection – irrespective of
where, towards whom and in what manner it does so. Furthermore, the
Convention rights should permeate the participation of Council of Europe
member States in the international community, in so far as “the Council of
Europe legal order can no longer be confused with the traditional
international accord of juxtaposed egoisms. Sovereignty is no longer an
absolute given, as in Westphalian times, but an integral part of a human
rights-serving community”125.
42. At the end of the day, the RIPA distinction was unfit for purpose in
the developing Internet age and only served the political aim of legitimising
the system in the eyes of the British public with the illusion that persons
within the United Kingdom’s territorial jurisdiction would be spared the
governmental “Big Brother”. In fact, they were not. The Secretary of State
could, when he or she found it necessary, determine the examination of
material selected according to factors referable to an individual who was in
the British Islands126 and modify a certificate to authorise the selection of
communications of that individual127. In addition, the by-catch of internal
communications not identified in the Secretary of State’s warrant was
allowed whenever necessary to obtain the external communications that
were the subject of the warrant128, and according to the Government
reason that the vast majority of people known to be for the time being in the British Islands
are British citizens, and vice versa the majority of those outside are foreigners. The more
beneficial treatment of nationals was also noted by the FRA (Surveillance by intelligence
services, cited above, p. 45: “When intelligence services conduct surveillance domestically,
the applicable legal safeguards are enhanced comparing to those in place for foreign
surveillance”).
123 IPT, Human Rights Watch & Ors v SoS for the Foreign & Commonwealth Office & Ors,
16 May 2016: “In respect of any asserted belief that any conduct falling within s.68(5) of
RIPA has been carried out by or on behalf of any of the Intelligence Services, a
complainant must show that there is a basis for such belief, so that he may show that he is
potentially at risk of being subjected to such conduct. Further such a claimant must show in
respect of such a complaint that he is or was at a material time present in the United
Kingdom”.
124 The Venice Commission Report, cited above, p. 17, makes the same critique “on
fundamental grounds”, as does the UN Special Rapporteur on the promotion of the right to
freedom of opinion and expression, referring to the ICCPR (see paragraph 313 of this
judgment).
125 Paragraph 22 of my opinion in Mursić v. Croatia [GC], no. 7334/13, 20 October 2016.
126 Section 16(3) of RIPA.
127 Paragraph 6.2 of the IC Code.
128 Section 5(6)(a) of RIPA and paragraph 6.6 of the IC Code.
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