that case the government's denial that there had been surveillance of the
complainants did not prevent them from having the status of victims, who were
entitled to challenge in the courts the compatibility with Article 8 of legislation
permitting secret measures of surveillance, without their having to allege or
establish that surveillance measures were in fact applied to them. It was
unnecessary for them to point to any concrete measure specifically affecting
them. It was sufficient that the "menace of surveillance" existed in the
legislation, which constituted for all users or potential users of mail and
telecommunications a direct interference with the right guaranteed by Article
8(1). It is contended that the system of holding of personal data is a similar "Big
Brother" menace, which, like the system for the interception of communications,
constitutes an interference, of which individual complaint can be made and which
the public authority has to justify.
27. We did not derive much assistance from Klass on the Interference Issue. It
was a case of an actio popularis challenging the legislation itself rather than the
exercise of powers under it. The issue was one of locus for the purposes of that
challenge. It was held that, for that purpose, the complainants were victims and
had locus to make the challenge. Klass was not a complaint of actual interference
by an act of surveillance. In this case, there is no dispute as to locus, because it is
accepted that, even if no relevant data are held, the NCND response can still be
challenged on rationality grounds, by reference to ordinary judicial review
principles.