Case of European Court of Human Rights, September 13, 2018 (case BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM)

Defense:THE UNITED KINGDOM
Resolution Date:September 13, 2018
SUMMARY

Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-3-a) Manifestly ill-founded;Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);No violation of Article 8 - Right to respect for private and family life (Article 8-1... (see full summary)

 
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FIRST SECTION

CASE OF BIG BROTHER WATCH AND OTHERSv. THE UNITED KINGDOM

(Applications nos. 58170/13, 62322/14 and 24960/15)

JUDGMENT

STRASBOURG

13 September 2018

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

TABLE OF CONTENTS

PROCEDURE

THE FACTS

  1. THE CIRCUMSTANCES OF THE CASE

    1. Background

    2. The secret surveillance schemes

      1. Government Communications Headquarters (“GCHQ”)

      2. The United States’ National Security Agency (“NSA”)

      (a) PRISM

      (b) Upstream

    3. Domestic proceedings in the first and second of the joined cases

    4. Domestic proceedings in the third of the joined cases

      1. The hearing

      2. The IPT’s first judgment of 5 December 2014

        (a) The PRISM issue

        (b) The section 8(4) issue

      3. The IPT’s second judgment of 6 February 2015

      4. The IPT’s third judgment of 22 June 2015 as amended by its 1 July 2015 letter

  2. RELEVANT DOMESTIC LAW AND PRACTICE

    1. The interception of communications

      1. Warrants: general

      2. Warrants: section 8(4)

        (a) Authorisation

        (b) “External” communications

      3. Specific safeguards under RIPA

        (a) Section 15

        (b) Section 16

      4. The Interception of Communications Code of Practice

      5. Statement of Charles Farr

      6. Belhadj and Others v. Security Service, Secret Intelligence Service, Government Communications Headquarters, the Secretary of State for the Home Department, and the Secretary of State for the Foreign and Commonwealth Office, IPT/13/132-9/H and IPT/14/86/CH

    2. Intelligence sharing

      1. British-US Communication Intelligence Agreement

      2. Relevant statutory framework for the operation of the intelligence services

        (a) MI5

        (b) MI6

        (c) GCHQ

        (d) Counter-Terrorism Act 2008

        (e) The Data Protection Act 1998 (“DPA”)

        (f) The Official Secrets Act 1989 (“OSA”)

        (g) The Human Rights Act 1998 (“HRA”)

      3. The Interception of Communications Code of Practice

    3. Acquisition of communications data

      1. Chapter II of RIPA

      2. The Acquisition and Disclosure of Communications Data: Code of Practice

      3. News Group and Others v. The Commissioner of Police of the Metropolis IPT/14/176/H, 17 December 2015

      4. The Police and Criminal Evidence Act 1984

    4. IPT practice and procedure

      1. RIPA

      2. The Investigatory Powers Tribunal Rules 2000 (“the Rules”)

      3. IPT ruling on preliminary issues of law

      4. Counsel to the Tribunal

    5. Oversight

    6. Reviews of interception operations by the intelligence service

      1. Intelligence and Security Committee of Parliament: July 2013 Statement on GCHQ’s alleged interception of communications under the US PRISM programme

      2. Privacy and security: a modern and transparent legal framework

      3. “A Question of Trust”: Report of the Investigatory Powers Review by the Independent Reviewer of Terrorism Legislation (“the Anderson Report”)

      4. A Democratic Licence to Operate: Report of the Independent Surveillance Review (“ISR”)

      5. Report of the Bulk Powers Review

      6. Attacks in London and Manchester March-June 2017: Independent Assessment of MI5 and Police Internal Reviews

      7. Annual Report of the Interception of Communications Commissioner for 2016

      (a) Section 8(4) warrants

      (b) Acquisition of communications data under Chapter II of RIPA

    7. The Investigatory Powers Act 2016

    8. Relevant international law

      1. The United Nations

        (a) Resolution no. 68/167 on The Right to Privacy in the Digital Age

        (b) The Constitution of the International Telecommunication Union 1992

        (c) The 2006 Annual Report of the International Law Commission

      2. The Council of Europe

        (a) The Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data 1981

        (b) The Additional Protocol to the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data regarding supervisory authorities and transborder data flows of 8 November 2001 (CETS No. 181)

        (c) Recommendation of the Committee of Ministers on the protection of personal data in the area of telecommunication services

        (d) The 2001 (Budapest) Convention on Cybercrime

        (e) The 2015 Report of the European Commission for Democracy through Law (“the Venice Commission”) on the Democratic Oversight of Signals Intelligence Agencies

  3. European Union law

    1. Charter of Fundamental Rights of the European Union

      Article 7 – Respect for private and family life

      Article 8 – Protection of personal data

      Article 11 – Freedom of expression and information

    2. EU directives and regulations relating to protection and processing of personal data

    3. Relevant case-law of the Court of Justice of the European Union (“CJEU”)

      (a) Digital Rights Ireland v. Minister for Communications, Marine and Natural Resources and Others and Seitinger and Others (Cases C‑293/12 and C‑594/12; ECLI:EU:C:2014:238)

      (b) Tele2 Sverige AB v Post- och telestyrelsen and Secretary of State for the Home Department v Tom Watson and Others (Cases C‑203/15 and C‑698/15; ECLI:EU:C:2016:970)

      (c) Privacy International v. Secretary of State for Foreign and Commonwealth Affairs, Secretary of State for the Home Department, Government Communications Headquarters, Security Service and Secret Intelligence Service (IPT/15/110/CH; EU OJ C 22, 22.1.2018, p. 29–30)

      THE LAW

  4. EXHAUSTION OF DOMESTIC REMEDIES

    1. The parties’ submissions

      1. The Government

      2. The applicants

    2. The submissions of the third party

    3. The Court’s assessment

      1. General principles

      2. Application of those principles to the case at hand

  5. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

    1. The section 8(4) regime

      1. Admissibility

      2. Merits

      (a) The parties’ submissions

      (i) The applicants

      (ii) The Government

      (b) The submissions of the third parties

      (i) Article 19

      (ii) Access Now

      (iii) ENNHRI

      (iv) The Helsinki Foundation for Human Rights (“HFHR”)

      (v) The International Commission of Jurists (“ICJ”)

      (vi) Open Society Justice Initiative (“OSJI”)

      (vii) European Digital Rights (“EDRi”) and other organisations active in the field of human rights in the information society

      (viii) The Law Society of England and Wales

      (c) The Court’s assessment

      (i) General principles relating to secret measures of surveillance, including the interception of communications

      (ii) Existing case-law on the bulk interception of communications

      (iii) The test to be applied in the present case

    2. The intelligence sharing regime

      1. Admissibility

        (a) The parties’ submissions

        (b) The Court’s assessment

      2. Merits

        (a) The parties’ submissions

        (i) The applicants

        (ii) The Government

        (b) The submissions of the third parties

        (i) The Electronic Privacy Information Center (“EPIC”)

        (ii) Access Now

        (iii) Bureau Brandeis

        (iv) Center for Democracy and Technology (“CDT”) and Pen American Center (“PEN America”)

        (v) The International Commission of Jurists (“ICJ”)

        (vi) Open Society Justice Initiative (“OSJI”)

        (vii) The Law Society of England and Wales

        (viii) Human Rights Watch (“HRW”)

        (c) The Court’s assessment

        (i) The scope of the applicants’ complaints

        (ii) The nature of the interference

        (iii) The applicable test

        (iv) Application of the test to material falling into the second category

        (v) Application of the test to material falling into the third category

    3. The Chapter II regime

      1. Admissibility

      2. Merits

      (a) The parties’ submissions

      (i) The applicants

      (ii) The Government

      (b) The Court’s assessment

      (i) Existing case-law on the acquisition of communications data

      (ii) The approach to be taken in the present case

      (iii) Examination of the Chapter II regime

  6. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

    1. Admissibility

      1. The applicants in the third of the joined cases

      2. The applicants in the second of the joined cases

    2. Merits

      1. The parties’ submissions

        (a) The applicants

        (b) The Government

      2. The submissions of the third parties

        (a) The Helsinki Foundation for Human Rights

        (b) The National Union of Journalists (“NUJ”) and the International Federation of Journalists (“IFJ”)

        (c) The Media Lawyers’ Association (“MLA”)

      3. The Court’s assessment

        (a) General principles

        (b) The application of the general principles to the present case

        (i) The section 8(4) regime

        (ii) The Chapter II regime

        (iii) Overall conclusion

  7. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

  8. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION COMBINED WITH ARTICLES 8 AND 10 OF THE CONVENTION

  9. APPLICATION OF ARTICLE 41 OF THE CONVENTION

    1. Damage

    2. Costs and expenses

    3. Default interest

    FOR THESE REASONS, THE COURT:

    APPENDIX

    PARTLY CONCURRING, PARTLY DISSENTING OPINION OF JUDGE KOSKELO, JOINED BY JUDGE TURKOVIĆ

  10. The RIPA section 8(4) regime

    (i) The context of earlier case-law

    (ii) The context of the present case

    (iii) Concerns

  11. The intelligence-sharing regime

    JOINT PARTLY DISSENTING AND PARTLY CONCURRING OPINION OF JUDGES PARDALOS AND EICKE

    Introduction

    Admissibility

    The section 8(4) regime

    Post Scriptum

    In the case of Big Brother Watch and Others v. the United Kingdom,

    The European Court of Human Rights (First Section), sitting as a Chamber composed of:

    Linos-Alexandre Sicilianos, President,Kristina Pardalos,Aleš Pejchal,Ksenija Turković,Armen Harutyunyan,Pauliine Koskelo,Tim Eicke, judges,and Abel Campos, Section Registrar,

    Having deliberated in private on 7 November 2017 and 3 July 2018,

    Delivers the following judgment, which was adopted on the last‑mentioned date:

    PROCEDURE

    1. The case originated in three applications (nos. 58170/13, 62322/14 and 24960/15) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by the companies, charities, organisations and individuals listed in the Appendix (“the applicants”) on 4 September 2013, 11 September 2014 and 20 May 2015 respectively.

    2. The applicants were represented by Mr D. Carey, of Deighton Pierce Glynn Solicitors; Ms R. Curling of Leigh Day and Co. Solicitors; and Ms E. Norton of Liberty. The Government of the United Kingdom (“the Government”) were represented by their Agent, Ms R. Sagoo of the Foreign and Commonwealth...

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