12
BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
(3) Is the regime, whether with or without s.16, sufficiently compliant with the
Weber requirements, insofar as such is necessary in order to be in accordance with
law?
(4) Is s. 16(2) indirectly discriminatory contrary to Article 14 of the Convention,
and, if so, can it be justified?”
42. In relation to the first question, the applicants had contended that
following the “sea-change in technology since 2000” substantially more
communications were now external, and as a result the internal/external
distinction in section 8(4) was no longer “fit for purpose”. While the IPT
accepted that the changes in technology had been substantial, and that it was
impossible to differentiate at interception stage between external and
internal communications, it found that the differences in view as to the
precise definition of “external communications” did not per se render the
section 8(4) regime incompatible with Article 8 § 2. In this regard, it
considered that the difficulty in distinguishing between “internal” and
“external” communications had existed since the enactment of RIPA and the
changes in technology had not materially added to the quantity or
proportion of communications which could or could not be differentiated as
being external or internal at the time of interception. At worst, they had
“accelerated the process of more things in the world on a true analysis being
external than internal”. In any case the distinction was only relevant at
interception stage. The “heavy lifting” was done by section 16 of RIPA,
which prevented intercepted material being selected to be read, looked at or
listened to “according to a factor which is referable to an individual who is
known to be for the time being in the British Islands” (see paragraphs 78-80
below). Furthermore, all communications intercepted under a section 8(4)
warrant could only be considered for examination by reference to that
section.
43. In respect of the second question, the IPT held that the section 16
safeguards, which applied only to intercept material and not to related
communications data, were sufficient. Although it concluded that the Weber
criteria also extended to communications data, it considered that there was
adequate protection or safeguards by reference to section 15 (see
paragraphs 72-77 below). In addition, insofar as section 16 offered greater
protection for communications content than for communications data, the
difference was justified and proportionate because communications data
was necessary to identify individuals whose intercepted material was
protected by section 16 (that is, individuals known to be in the British
Islands).
44. Turning to the third question, the IPT concluded that the section 8(4)
regime was sufficiently compliant with the Weber criteria and was in any
event “in accordance with the law”. With regard to the first and second
requirements, it considered that the reference to “national security” was
sufficiently clear (citing Esbester v. the United Kingdom (dec.),