158
BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
authorities of the respondent State upon their request. The Court will first
deal with these two sub-categories together, before proceeding to consider
the third category separately.
(ii) The nature of the interference
419. The Court has already found that the applicants can claim to be
victims of the alleged violation of Article 8 of the Convention occasioned
by the existence of an intelligence sharing regime. However, it is important
to clarify at the outset the nature of the interference under consideration.
420. Although the impugned regime concerns intercepted
communications, the interference under consideration in this case does not
lie in the interception itself, which did not, in any event, occur within the
United Kingdom’s jurisdiction, and was not attributable to that State under
international law. As the communications are being intercepted by foreign
intelligence agencies, their interception could only engage the responsibility
of the respondent State if it was exercising authority or control over those
agencies (see, for example, Jaloud v. the Netherlands [GC], no. 47708/08,
§§ 139 and 151 ECHR 2014 and Al-Skeini and Others v. the United
Kingdom [GC], no. 55721/07, §§ 130-139, ECHR 2011). Even when the
United Kingdom authorities request the interception of communications
(rather than simply the conveyance of the product of intercept), the
interception would appear to take place under the full control of the foreign
intelligence agencies. Some of the third parties have invoked the ILC
Articles, but these would only be relevant if the foreign intelligence
agencies were placed at the disposal of the respondent State and were acting
in exercise of elements of the governmental authority of the respondent
State (Article 6); if the respondent State aided or assisted the foreign
intelligence agencies in intercepting the communications where that
amounted to an internationally wrongful act for the State responsible for the
agencies, the United Kingdom was aware of the circumstances of the
internationally wrongful act, and the act would have been internationally
wrongful if committed by the United Kingdom (Article 16); or if the
respondent State exercised direction or control over the foreign Government
(Article 17). There is no suggestion that this is the case.
421. Consequently, the interference lies in the receipt of the intercepted
material and its subsequent storage, examination and use by the intelligence
services of the respondent State.
(iii) The applicable test
422. As with any regime which provides for the acquisition of
surveillance material, the regime for the obtaining of such material from
foreign Governments must be “in accordance with the law”; in other words,
it must have some basis in domestic law, it must be accessible to the person
concerned and it must be foreseeable as to its effects (see Roman Zakharov,