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BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT –
SEPARATE OPINIONS
19. Secondly, we also agree with the majority in identifying as potential
shortcomings (or, to use the language in Centrum För Rättvisa “areas where
there is scope for improvement”) in the operation of the section 8(4) regime
“the lack of oversight of the entire selection process, including the selection
of bearers for interception, the selectors and search criteria for filtering
intercepted communications, and the selection of material for examination
by an analyst; and secondly, the absence of any real safeguards applicable to
the selection of related communications data for examination” (§ 387).
20. Finally, we agree with the majority as to the correct approach to be
applied when considering whether the system under review satisfied the
requirement of being “necessary in a democratic society” under Article 8
§ 2 of the Convention, namely that:
“... regard must be had to the actual operation of the system of interception,
including the checks and balances on the exercise of power, and the existence or
absence of any evidence of actual abuse (see Association for European Integration and
Human Rights and Ekimdzhiev, cited above, § 92) (§ 320)
... it must principally have regard to the actual operation of a system of interception
as a whole, including the checks and balances on the exercise of power, and the
existence (or absence) of any evidence of actual abuse (...), such as the authorising of
secret surveillance measures haphazardly, irregularly or without due and proper
consideration (see Roman Zakharov, cited above, § 267) (§ 377).”
21. Where we disagree is (again) in the application of that approach to
the system under review.
22. Before setting out in little more detail the basis for our disagreement
we note in passing that this Court’s underlying approach appears to be in
clear contrast to the approach taken by the CJEU 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) and Secretary of
State for the Home Department v. Watson and Others (C-698/15). In the
former case, the CJEU was considering the validity of the Data Retention
Directive, and in the latter, the validity of domestic legislation containing
the same provisions as that directive. 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.
Therefore, while there is some similarity in the language used by the two
courts, the CJEU appears to have adopted a more prescriptive approach as
regards the safeguards it considers necessary. This may be due to the fact
that in both cases it was considering the rights guaranteed by reference to
Articles 7 (Respect for private and family life) and 8 (Protection of personal