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BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
nationality because persons outside the United Kingdom were
disproportionately likely to have their private communications intercepted;
and section 16 of RIPA provides additional safeguards only to persons
known to be in the British Islands.
515. Article 14 provides as follows:
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be
secured without discrimination on any ground such as sex, race, colour, language,
religion, political or other opinion, national or social origin, association with a
national minority, property, birth or other status.”
516. However, the applicants have not substantiated their claim that
persons outside the United Kingdom are disproportionately likely to have
their private communications intercepted under the section 8(4) regime.
First of all, although the regime targets “external communications”, this is
defined as “a communication sent or received outside the British Islands”.
This does not, therefore, exclude the interception of communications where
one of the parties is in the British Islands. Secondly, and in any event, it has
already been acknowledged that “internal communications” (where both the
sender and receiver are in the British Islands) are frequently – and lawfully
– intercepted as a by-catch of a section 8 (4) warrant.
517. Insofar as section 16 prevents intercepted material from being
selected for examination according to a factor “referable to an individual
who is known to be for the time being in the British Islands”, any resulting
difference in treatment would not be based directly on nationality or
national origin, but rather on geographical location. In Magee v. the United
Kingdom, no. 28135/95, § 50, ECHR 2000-VI the Court held that as such a
difference in treatment could not be explained in terms of personal
characteristics, it was not a relevant difference in treatment for the purposes
of Article 14 of the Convention and did not amount to discriminatory
treatment within the meaning of Article 14 of the Convention (see Magee,
cited above, § 50).
518. In any event, the Court is of the view that any difference in
treatment based on geographic location was justified. The Government have
considerable powers and resources to investigate persons within the British
Islands and do not have to resort to interception of their communications
under a section 8(4) warrant. They do not, however, have the same powers
to investigate persons outside of the British Islands.
519. Accordingly, the Court considers that the complaint under
Article 14 of the Convention, read together with Articles 8 and 10, must be
rejected as manifestly ill-founded pursuant to Article 35 § 3(a) of the
Convention.