BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT –
SEPARATE OPINIONS
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data) of the Charter of Fundamental Rights. However, while in Watson the
CJEU declined to state whether the protection provided by Articles 7 and 8
of the Charter was wider than that afforded by Article 8 of the Convention,
we can but note that, on the one hand, Article 52 § 3 of the Charter of
Fundamental Rights, while recognising the ability of EU law providing
more extensive protection, is clearly expressed by reference to “rights”
guaranteed by the Convention (rather than “Articles”) corresponding to
“rights” contained in the Charter and that, on the other hand, this Court has,
at least since the 1978 judgment of the Plenary Court in Klass and Others
v. Germany, Series A no. 28, consistently protected the right to the
protection of personal data under Article 8 of the Convention. In any event,
in Ben Faiza v. France, no. 31446/12, 8 February 2018, which was decided
one year after Watson, and four years after Digital Rights Ireland, this Court
did not follow the CJEU’s approach, preferring instead to follow its wellestablished approach and to review the impugned regime as a whole in order
to evaluate the adequacy of the available safeguards.
23. In any event, applying this Court’s well-established approach, it is in
our view, clear from the (in the context of secret surveillance cases
unusually) extensive and detailed (publicly available) evidence in relation to
the operation of the section 8(4) regime (summarised over some 35 pages in
the judgment) that, despite the identified areas where there is scope for
improvement, these are not, in themselves, sufficiently significant to justify
the conclusion that “the section 8(4) regime does not meet the ‘quality of
law’ requirement and is incapable of keeping the ‘interference’ to what is
‘necessary in a democratic society’” (§ 388). On the contrary, adopting the
approach of this Court in Centrum För Rättvisa, § 181, it is clear in our
view that, making an overall assessment and having regard to the margin of
appreciation enjoyed by the national authorities in protecting national
security, the section 8(4) regime does provide adequate and sufficient
guarantees against arbitrariness and the risk of abuse. As a result, we
concluded that the relevant legislation meets the “quality of law”
requirement and the “interference” established can be considered as being
“necessary in a democratic society” and that there was, therefore, no
violation of Article 8 of the Convention.
24. In this context, the contrast to the judgment in Centrum För Rättvisa
is instructive. After all, in that case the Court applied the same general
principles to the Swedish bulk interception regime and concluded,
unanimously, that there was no breach of Article 8 of the Convention.
Conscious of the difficulty – at times – in making detailed meaningful
comparisons between different interception regimes, it is nevertheless
noteworthy that the regime under consideration in that case, while equipped
with judicial prior authorisation:
(a) was completely shrouded in secrecy with the Court having little
meaningful information at all either about the actual generic operation of