BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
communications required special confidentiality protection; and sharing the
data of journalists, lawyers and other professions meriting special
confidentiality protection with foreign intelligence services.
C. Judgment of the Court of Appeal of The Hague of 14 March 2017
253. A number of individuals and associations argued that the Dutch
intelligence and security services were acting unlawfully by receiving data
from foreign intelligence and security services, in particular the NSA and
GCHQ, which in their view either had obtained or may have obtained the
data in an “unauthorised” or “illegal” manner. The plaintiffs did not contend
that the activities of the NSA and GCHQ were “unlawful” or “illegal”
under domestic law, but rather that the NSA had acted in violation of the
International Covenant on Civil and Political Rights (“the ICCPR”) and
GCHQ had acted in violation of the Convention. The plaintiffs relied, inter
alia, on the “Snowden revelations” (see paragraph 12 above).
254. The plaintiffs’ claims were dismissed by the Court of The Hague
on 23 July 2014 (ECLI:NL:RBDHA:2014:8966). Their appeal against this
judgment was dismissed by the Court of Appeal of The Hague on 14 March
2017 (ECLI:NL:GHDHA:2017:535).
255. The Court of Appeal held that in principle one had to trust that the
United States and the United Kingdom would comply with their obligations
under these treaties. That trust only needed to give way if sufficiently
concrete circumstances had come to light for it to be assumed that it was not
justified.
256. With respect to the collection of telecommunications data by the
NSA, there were no clear indications that the NSA had acted in violation of
the ICCPR. In so far as the plaintiffs had sought to argue that the statutory
powers underpinning the collection of data were broader than permissible
under the ICCPR, they had insufficiently explained in what respect the
relevant laws and regulations were inadequate.
257. With respect to the collection of data by GCHQ, the plaintiffs had
not in any way substantiated their claim that GCHQ was acting in breach of
the Convention.
258. The plaintiffs had therefore failed to demonstrate that the manner in
which the NSA and GCHQ operated was, at least in principle, in conflict
with the ICCPR and the Convention. While it could not be excluded that in
a specific case the NSA or GCHQ, or any other foreign intelligence service,
may have collected data in a way that violated the ICCPR or the
Convention, the principle of trust prevented this mere possibility from
implying that the Dutch intelligence services could not receive data from
foreign intelligence services without verifying in each individual case that
these data had been obtained without violating the relevant treaty
obligations.
80