BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
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a request under Article 77-1-1 was subject to the prior authorisation of the
public prosecutor’s office; this obligation could not be derogated from under
penalty of nullity of the act; and the legality of such a measure could be
reviewed in subsequent criminal proceedings against the person concerned
and, if found to be unlawful, the criminal courts could exclude the evidence
so obtained (Ben Faiza, cited above, §§ 72-73).
462. In adopting this approach, the Court distinguished between
methods of investigation which made it possible to identify the past
geographical position of a person and those which made it possible to
geolocate him or her in real time, indicating that the latter was more likely
to violate the right to respect for private life. Consequently, in the view of
the Court, the transmission to a judicial authority of existing data held by a
public or private body was to be distinguished from the establishment of a
surveillance system, such as the ongoing monitoring of a telephone line or
the placing of a tracking device on a vehicle (Ben Faiza, cited above, § 74;
see also paragraph 350 above).
463. The Court of Justice of the European Union has also addressed this
issue. In Digital Rights Ireland v. Minister for Communications, Marine and
Natural Resources and Others and Settinger and Others (Cases C-293/12
and C-594/12), the CJEU considered the validity of the Data Retention
Directive, and in Secretary of State for the Home Department v. Watson
and Others (C-698/15), the validity of domestic legislation containing the
same provisions as that directive (see paragraphs 224-234 above). While its
focus was on the retention of data by CSPs, it also considered the question
of access to retained data by the national authorities. In doing so, it
indicated that access should be limited to what was strictly necessary for the
objective pursued and, where that objective was fighting crime, it should be
restricted to fighting serious crime. It further suggested that access should
be subject to prior review by a court or independent administrative
authority, and that there should be a requirement that the data concerned be
retained within the European Union. In light of the CJEU’s findings, Liberty
sought to challenge Part 4 of the IPA, which included a power to issue
“retention notices” to telecommunications operators requiring the retention
of data. In response, the Government conceded that Part 4 was incompatible
with fundamental rights in EU law since access to retained data was not
limited to the purpose of combating “serious crime”; and access to retained
data was not subject to prior review by a court or an independent
administrative body. The High Court held that the legislation had to be
amended by 1 November 2018 (see paragraph 196 above).
(ii) The approach to be taken in the present case
464. The appropriate test in the present case will therefore be whether
the Chapter II regime was in accordance with the law; whether it pursued a
legitimate aim; and whether it was necessary in a democratic society, having