BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
2. There shall be no interference by a public authority with the exercise of this right
except such as is in accordance with the law and is necessary in a democratic society
in the interests of national security, public safety or the economic well-being of the
country, for the prevention of disorder or crime, for the protection of health or morals,
or for the protection of the rights and freedoms of others.”
1. The Chamber judgment
274. The Chamber expressly recognised that States enjoyed a wide
margin of appreciation in deciding what type of interception regime was
necessary to protect national security, but considered that the discretion
afforded to States in operating an interception regime would necessarily be
narrower. In this regard, it observed that the Court had identified six
“minimum safeguards” which should be set out in law to avoid abuses of
power: the nature of offences which may give rise to an interception order, a
definition of the categories of people liable to have their communications
intercepted, a limit on the duration of interception, the procedure to be
followed for examining, using and storing the data obtained, the precautions
to be taken when communicating the data to other parties, and the
circumstances in which intercepted data may or must be erased or
destroyed. These safeguards, which were first set out in Huvig v. France,
24 April 1990, § 34, Series A no. 176 B and Kruslin v. France, 24 April
1990, § 35, Series A no. 176-A, had been applied routinely by the Court in
its case-law on the interception of communications and in two cases
specifically concerning the bulk interception of communications (see Weber
and Saravia v. Germany (dec.), no. 54934/00, ECHR 2006‑XI and Liberty
and Others v. the United Kingdom, no. 58243/00, 1 July 2008).
275. In the Chamber’s view, the decision to operate a bulk interception
regime fell within the margin of appreciation afforded to Contracting States.
It assessed the operation of the United Kingdom’s bulk interception regime
by reference to the six minimum safeguards set out in the preceding
paragraph. As the first two safeguards did not readily apply to bulk
interception, the Chamber reframed these safeguards, considering first,
whether the grounds upon which a warrant could be issued were sufficiently
clear; secondly, whether domestic law gave citizens an adequate indication
of the circumstances in which their communications might be intercepted;
and thirdly, whether domestic law gave citizens an adequate indication of
the circumstances in which their communications might be selected for
examination. In addition, in light of recent case-law (including
Roman Zakharov v. Russia [GC], no. 47143/06, ECHR 2015) the Chamber
also had regard to the arrangements for supervising the implementation of
secret surveillance measures, the existence of notification mechanisms and
any remedies provided for by national law.
276. It identified the following two areas of concern in the section 8(4)
regime: first, the lack of oversight of the selection of bearers for
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