BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
Charter of Fundamental Rights had many features in common, there were
also differences, most notably Article 8 of the Charter which contained a
right to the protection of personal data. The CJEU also formulated
“proportionality” differently, using a “strict necessity” method which did
not compare to that used by the Court.
(d) The United Nations’ Special Rapporteur on the promotion of the right to
freedom of opinion and expression
311. The Special Rapporteur argued that surveillance cast a shadow over
communications, such that individuals might refrain from engaging in
activities protected under international human rights law. That was not to
say that all surveillance operations constituted a violation of human rights
law; some might be tolerable when the conditions of legality, necessity and
legitimacy were met. However, all types of surveillance required a rigorous
evaluation of whether they were consistent with the norms of international
human rights law.
312. In the Special Rapporteur’s view, the right to privacy had to be
protected not only as a fundamental right independent of all others, but also
in order to protect other rights, such as freedom of opinion and expression,
which depended on a zone of privacy for their enjoyment. As the Special
Rapporteur had indicated in his 2015 report, surveillance systems might
undermine the right to form an opinion as the fear of unwilling disclosure of
online activity could deter individuals from accessing information.
313. The UN High Commissioner’s report counselled against
distinguishing metadata from content when examining the severity of the
interference with rights protected under the International Covenant on Civil
and Political Rights (“ICCPR”). Her 2014 report indicated that the
aggregation of metadata by way of Government surveillance might reveal
more private detail about an individual than perhaps even a private
communication would. The Special Rapporteur further indicated that the
distinction between internal and external communications might run counter
to the ICCPR. The ICCPR placed States under a duty to respect and ensure
all the rights therein to all within their jurisdiction, and in its latest General
Comment the Human Rights Committee interpreted this standard as
including State activities that directly impacted rights outside its own
territory.
314. Finally, the Special Rapporteur emphasised the importance of
safeguards to protect against abuse, in particular, the need for a court,
tribunal or other adjudicatory body to supervise the application of an
interference measure; subsequent notification of surveillance subjects;
publication of information on the scope of surveillance techniques and
powers; and the right to effective remedies in case of abuse.
95