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BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
2. A Party may reserve the right to require that the conduct described in paragraph 1
result in serious harm.
...”
Article 15 – Conditions and safeguards
“1. Each Party shall ensure that the establishment, implementation and application
of the powers and procedures provided for in this Section are subject to conditions and
safeguards provided for under its domestic law, which shall provide for the adequate
protection of human rights and liberties, including rights arising pursuant to
obligations it has undertaken under the 1950 Council of Europe Convention for the
Protection of Human Rights and Fundamental Freedoms, the 1966 United Nations
International Covenant on Civil and Political Rights, and other applicable
international human rights instruments, and which shall incorporate the principle of
proportionality.”
210. The Explanatory Report explains that:
“38. A specificity of the offences included is the express requirement that the
conduct involved is done "without right". It reflects the insight that the conduct
described is not always punishable per se, but may be legal or justified not only in
cases where classical legal defences are applicable, like consent, self-defence or
necessity, but where other principles or interests lead to the exclusion of criminal
liability. The expression "without right" derives its meaning from the context in which
it is used. Thus, without restricting how Parties may implement the concept in their
domestic law, it may refer to conduct undertaken without authority (whether
legislative, executive, administrative, judicial, contractual or consensual) or conduct
that is otherwise not covered by established legal defences, excuses, justifications or
relevant principles under domestic law. The Convention, therefore, leaves unaffected
conduct undertaken pursuant to lawful government authority (for example, where the
Party’s government acts to maintain public order, protect national security or
investigate criminal offences). Furthermore, legitimate and common activities
inherent in the design of networks, or legitimate and common operating or
commercial practices should not be criminalised. Specific examples of such
exceptions from criminalisation are provided in relation to specific offences in the
corresponding text of the Explanatory Memorandum below. It is left to the Parties to
determine how such exemptions are implemented within their domestic legal systems
(under criminal law or otherwise).
...
“58. For criminal liability to attach, the illegal interception must be committed
"intentionally", and "without right". The act is justified, for example, if the
intercepting person has the right to do so, if he acts on the instructions or by
authorisation of the participants of the transmission (including authorised testing or
protection activities agreed to by the participants), or if surveillance is lawfully
authorised in the interests of national security or the detection of offences by
investigating authorities.”
(e) The 2015 Report of the European Commission for Democracy through
Law (“the Venice Commission”) on the Democratic Oversight of Signals
Intelligence Agencies
211. The Venice Commission noted, at the outset, the value that bulk
interception could have for security operations, since it enabled the security