BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
serious interference with privacy which could, through its “chilling effect”,
potentially interfere with other rights such as freedom of expression and
freedom of association. To be lawful, bulk interception should therefore
satisfy several preconditions: the governing law had to be sufficiently
precise; the scope of the information gathered had to be limited by time and
geography; and information should only be gathered based on “reasonable
suspicion”.
(i) The Helsinki Foundation for Human Rights (“HFHR”)
319. The HFHR described their experience challenging the surveillance
of communications by public authorities in Poland, which culminated in the
Constitutional Tribunal finding certain aspects of the relevant legislation to
be unconstitutional. The legislation was subsequently amended.
(j) The International Commission of Jurists (“ICJ”)
320. The ICJ submitted that in light of the scale and scope of the
interference with privacy entailed in mass surveillance, the distinction
between metadata and content had become out-dated. Furthermore, the fact
that, in a mass surveillance operation, elements of the interference with
rights might take place outside a State’s territorial jurisdiction did not
preclude that State’s responsibility, since its control over the information
was sufficient to establish jurisdiction.
(k) The Law Society of England and Wales
321. The Law Society expressed deep concern about the implications of
the section 8(4) regime for the principle of legal professional privilege. In
its view, the regime permitted the interception of legally privileged and
confidential communications between lawyers and clients, even when both
were in the United Kingdom. It also permitted the routine collection of
metadata attaching to such communications. Furthermore, once intercepted
these legally privileged communications could be used, provided that the
primary purpose and object of the warrant was the collection of external
communications. This arrangement – and the absence of adequate
constraints on the use of such material – was apt to have a potentially severe
chilling effect on the frankness and openness of lawyer-client
communications.
4. The Court’s assessment
(a) Preliminary remarks
322. The present complaint concerns the bulk interception of
cross-border communications by the intelligence services. While it is not the
first time the Court has considered this kind of surveillance (see Weber and
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