BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
167
of the Chapter II regime if they are able to show that, due to their personal
situation, they were potentially at risk of having their communications data
obtained by the United Kingdom authorities through a request to a CSP (see
Roman Zakharov, cited above, § 171).
454. In this regard, the Court notes that the Chapter II regime is not a
regime for the bulk acquisition of communications data; rather, as stated
previously, it permits public authorities to request specific communications
data. Nevertheless, a large number of public authorities are entitled to make
such requests, and the grounds on which a request might be made are
relatively wide. Given that the applicants in the second of the joined cases
are investigative journalists who have reported on issues such as CIA
torture, counterterrorism, drone warfare, and the Iraq war logs, the Court
would accept that they were potentially at risk of having their
communications obtained by the United Kingdom authorities either directly,
through a request to a CSP for their communications data, or indirectly,
through a request to a CSP for the communications data of a person or
organisation they had been in contact with.
455. The Court would therefore accept that they were “victims” within
the meaning of Article 34 of the Convention. As this complaint is not
inadmissible on any other grounds, it must be declared admissible.
2. Merits
(a) The parties’ submissions
(i) The applicants
456. The applicants submitted that Chapter II of RIPA permitted the
obtaining of communications data in a wide range of ill-defined
circumstances, without proper safeguards. In particular, they submitted that
the legal framework and attendant safeguards were informed by a
fundamental but erroneous premise; namely, that the obtaining of
communications data was necessarily less intrusive than the interception of
content. In particular, the applicants complained that in most cases
authorisation for the acquisition of communications data was provided by a
designated person, who was not sufficiently independent of the executive or
even of the agency requesting the disclosure.
457. Furthermore, they complained that Chapter II provided few
limitations as to the basis on which communications data could be acquired,
since section 22 of RIPA allowed a designated person to authorise the
acquisition of communications data on a broad range of grounds, provided
that he or she believed it “necessary”. Finally, they argued that there were
very few safeguards in respect of the handling and exploitation of
communications data.