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BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
certificate containing a description of the intercepted material which he
considered should be examined. The 1985 Act provided that material could
be contained in a certificate, and thus listened to or read, if the Secretary of
State considered that this was required in the interests of national security,
the prevention of serious crime or the protection of the United Kingdom’s
economy. However, external communications emanating from a particular
address in the United Kingdom could only be included in a certificate for
examination if the Secretary of State considered it necessary for the
prevention or detection of acts of terrorism. The Court held that the
domestic law at the relevant time (which predated the adoption of the
Interception of Communications Code of Practice – see, in particular,
paragraph 109 above) did not indicate with sufficient clarity, so as to
provide adequate protection against abuse of power, the scope or manner of
exercise of the very wide discretion conferred on the State to intercept and
examine external communications. In particular, it did not set out in a form
accessible to the public any indication of the procedure to be followed for
selecting for examination, sharing, storing and destroying intercepted
material.
(iii) The test to be applied in the present case
314. The Court has expressly recognised that the national authorities
enjoy a wide margin of appreciation in choosing how best to achieve the
legitimate aim of protecting national security (see Weber and Saravia, cited
above, § 106). Furthermore, in Weber and Saravia and Liberty and Others
the Court accepted that bulk interception regimes did not per se fall outside
this margin. Although both of these cases are now more than ten years old,
given the reasoning of the Court in those judgments and in view of the
current threats facing many Contracting States (including the scourge of
global terrorism and other serious crime, such as drug trafficking, human
trafficking, the sexual exploitation of children and cybercrime),
advancements in technology which have made it easier for terrorists and
criminals to evade detection on the Internet, and the unpredictability of the
routes via which electronic communications are transmitted, the Court
considers that the decision to operate a bulk interception regime in order to
identify hitherto unknown threats to national security is one which
continues to fall within States’ margin of appreciation.
315. Nevertheless, as indicated previously, it is evident from the Court’s
case-law over several decades that all interception regimes (both bulk and
targeted) have the potential to be abused, especially where the true breadth
of the authorities’ discretion to intercept cannot be discerned from the
relevant legislation (see, for example, Roman Zakharov, cited above, and
Szabó and Vissy v. Hungary, no. 37138/14, 12 January 2016). Therefore,
while States enjoy a wide margin of appreciation in deciding what type of
interception regime is necessary to protect national security, the discretion