BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
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cited above, § 228). Furthermore, it must be proportionate to the legitimate
aim pursued, and there must exist adequate and effective safeguards against
abuse. In particular, the procedures for supervising the ordering and
implementation of the measures in question must be such as to keep the
“interference” to what is “necessary in a democratic society” (see
Roman Zakharov, cited above, § 232).
423. The parties dispute whether the six minimum requirements
commonly applied in cases concerning the interception of communications
(namely, the nature of offences which may give rise to an interception
order; a definition of the categories of people liable to have their
communications intercepted; a limit on the duration of interception; the
procedure to be followed for examining, using and storing the data obtained;
the precautions to be taken when communicating the data to other parties;
and the circumstances in which intercepted data may or must be erased or
destroyed – see paragraph 307 above) should apply in the present case. It is
true that the interference in this case is not occasioned by the interception of
communications by the respondent State. However, as the material obtained
is nevertheless the product of intercept, those requirements which relate to
its storage, examination, use, onward dissemination, erasure and destruction
must be present. Indeed, as the Venice Commission noted, as States could
use intelligence sharing to circumvent stronger domestic surveillance
procedures and/or any legal limits which their agencies might be subject to
as regards domestic intelligence operations, a suitable safeguard would be to
provide that the bulk material transferred could only be searched if all the
material requirements of a national search were fulfilled and this was duly
authorised in the same way as a search of bulk material obtained by the
signals intelligence agency using its own techniques (see paragraph 216
above).
424. Furthermore, while the first and second of the six requirements may
not be of direct relevance where the respondent State is not carrying out the
interception itself, the Court is nevertheless mindful of the fact that if
Contracting States were to enjoy an unfettered discretion to request either
the interception of communications or the conveyance of intercepted
communications from non-Contracting States, they could easily circumvent
their obligations under the Convention. Consequently, the circumstances in
which intercept material can be requested from foreign intelligence services
must also be set out in domestic law in order to avoid abuses of power.
While the circumstances in which such a request can be made may not be
identical to the circumstances in which the State may carry out interception
itself (since, if a State’s own intelligence services could lawfully intercept
communications themselves, they would only request this material from
foreign intelligence services if it is not technically feasible for them to do
so), they must nevertheless be circumscribed sufficiently to prevent –