BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT –
SEPARATE OPINIONS
[telephone-tapping] intrusion was in aid of law enforcement. Experience
should teach us to be most on our guard to protect liberty when the
Government’s purposes are beneficent”.
V. CONCLUSION
59. This judgment fundamentally alters the existing balance in Europe
between the right to respect for private life and public security interests, in
that it admits non-targeted surveillance of the content of electronic
communications and related communications data, and even worse, the
exchange of data with third countries which do not have comparable
protection to that of the Council of Europe States. This conclusion is all the
more justified in view of the CJEU’s peremptory rejection of access on a
generalised basis to the content of electronic communications171, its
manifest reluctance regarding general and indiscriminate retention of traffic
and location data172 and its limitation of exchanges of data with foreign
intelligence services which do not ensure a level of protection essentially
equivalent to that guaranteed by the Charter of Fundamental Rights173. On
all these three counts, the Strasbourg Court lags behind the Luxembourg
Court, which remains the lighthouse for privacy rights in Europe.
60. For good or ill, and I believe for ill more than for good, with the
present judgment the Strasbourg Court has just opened the gates for an
electronic “Big Brother” in Europe. If this is the new normal that my
learned colleagues in the majority want for Europe, I cannot join them, and
this I say with a disenchanted heart, with the same consternation as that
exuding from Gregorio Allegri’s Miserere mei, Deus.
277 US 438.
Paragraph 226 of this judgment.
172 Paragraphs 211, 217, 239-241 of this judgment.
173 Paragraph 234 of this judgment.
170
171
200