In Big
Brother Watch and Others v the United Kingdom (applications nos.
58170/13, 62322/14 and 24960/15), the European Court of Human Rights has
addressed concerns about three different surveillance regimes: (1) the bulk
interception of communications; (2) intelligence sharing with foreign
governments; and (3) the obtaining of communications data from communications
service providers.
Both the bulk interception regime and the regime for
obtaining communications data from communications service providers have a
statutory basis in the Regulation of Investigatory Powers Act 2000. The
Investigatory Powers Act 2016, when it comes fully into force, will make
significant changes to both regimes. In considering the applicants’ complaints,
the Court had regard to the law in force at the date of its examination. As the
provisions of the IPA 2016 which will amend the regimes for the bulk
interception of communications and the obtaining of communications data from
communications service providers were not in force at that time, the Court did
not consider them in its assessment.
In its Chamber judgment, the Court held, by five votes to
two, that the bulk interception regime violated Article 8 of the ECHR (right to
respect for private and family life/communications) as there was insufficient
oversight both of the selection of Internet bearers for interception and the
filtering, search and selection of intercepted communications for examination,
and the safeguards governing the selection of “related communications data” for
examination were inadequate.
In reaching this conclusion, the Court found that the
operation of a bulk interception regime did not in and of itself violate the
Convention, but noted that such a regime had to respect criteria set down in
its case-law.
The Court also held, by six votes to one, that:
- the regime for obtaining communications data from
communications service providers violated Article 8 as it was not in accordance
with the law; - that both the bulk interception regime and the regime for
obtaining communications data from communications service providers violated
Article 10 of the Convention as there were insufficient safeguards in respect
of confidential journalistic material.
It further found that the regime for sharing intelligence
with foreign governments did not violate either Article 8 or Article 10.
The Court unanimously rejected complaints made by the third
set of applicants under Article 6 (right to a fair trial), about the domestic
procedure for challenging secret surveillance measures, and under Article 14
(prohibition of discrimination).
The full judgment can be found here.
The official ECtHR press summary gives further details as
follows:
Principal facts
The three joined applications are Big Brother Watch and Others v. the United Kingdom (no. 58170/13); Bureau of Investigative Journalism and Alice
Ross v. the United Kingdom (no. 62322/14); and 10 Human Rights Organisations and Others v. the United Kingdom (no.
24960/15). The 16 applicants are organisations and individuals who are either
journalists or are active in campaigning on civil liberties issues.
The applications were lodged after Edward Snowden, a former
US National Security Agency (NSA) contractor, revealed the existence of
surveillance and intelligence sharing programmes operated by the intelligence
services of the United States and the United Kingdom.
The applicants believed that the nature of their activities
meant that their electronic communications and/or communications data were
likely to have been intercepted or obtained by the UK intelligence services.
Complaints and procedure
Relying on Article 8 (right to respect for private and
family life and correspondence), the applicants complained about the regimes
for the bulk interception of communications, intelligence sharing and for the
acquisition of data from communications service providers.
The second and third applications also raised complaints
under Article 10 (freedom of expression) related to their work, respectively,
as journalists and non-governmental organisations.
The third application relied in addition on Article 6 (right
to a fair trial), in relation to the domestic procedure for challenging
surveillance measures, and on Article 14 (prohibition of discrimination),
combined with Articles 8 and 10, alleging the regime for the bulk interception
of communications discriminated against people outside the United Kingdom,
whose communications were more likely to be intercepted and, if intercepted,
selected for examination.
The applications were lodged on 4 September 2013, 11
September 2014 and 20 May 2015 respectively. They were communicated to the
Government on 9 January 2014, 5 January 2015 and 24 November 2015, together
with questions from the Court. Various third parties were allowed to intervene
in the proceedings and a public hearing was held in November 2017.
Decision of the Court
Admissibility
The Court first considered whether the first and second set
of applicants had exhausted domestic remedies, part of the process of
admissibility, as they had not raised their complaints with the Investigatory
Powers Tribunal, a special body charged with examining allegations of wrongful
interference with communications by the security services.
It found that while the IPT has shown itself to be an
effective remedy which applicants had to use, at the time these two sets of
applicants lodged their applications with this Court there existed special
circumstances absolving them from that requirement and they could not be
faulted for relying on the Court’s 2010 judgment in Kennedy v. the United Kingdom as authority for the proposition that
the IPT was not an effective remedy for a complaint about the general
Convention compliance of a surveillance regime.
Article 8
Interception process under section 8(4) of RIPA
The Court noted that the bulk interception of communications
was regulated by section 8(4) of the Regulation of Investigatory Powers Act
(RIPA) 2000.
Operating a bulk interception scheme was not per se in
violation of the Convention and Governments had wide discretion (“a wide margin
of appreciation”) in deciding what kind of surveillance scheme was necessary to
protect national security. However, the operation of such systems had to meet
six basic requirements, as set out in Weber
and Saravia v. Germany. The Court rejected a request by the applicants to
update the Weber requirements, which they had said was necessary owing to
advances in technology.
The Court then noted that there were four stages of an
operation under section 8(4): the interception of communications being
transmitted across selected Internet bearers; the using of selectors to filter
and discard – in near real time – those intercepted communications that had
little or no intelligence value; the application of searches to the remaining
intercepted communications; and the examination of some or all of the retained
material by an analyst.
While the Court was satisfied that the intelligence services
of the United Kingdom take their Convention obligations seriously and are not
abusing their powers, it found that there was inadequate independent oversight
of the selection and search processes involved in the operation, in particular
when it came to selecting the Internet bearers for interception and choosing
the selectors and search criteria used to filter and select intercepted
communications for examination. Furthermore, there were no real safeguards
applicable to the selection of related communications data for examination,
even though this data could reveal a great deal about a person’s habits and
contacts.
Such failings meant section 8(4) did not meet the “quality
of law” requirement of the Convention and could not keep any interference to
that which was “necessary in a democratic society”. There had therefore been a
violation of Article 8 of the Convention.
Acquisition of data from communications service providers
under Chapter II of RIPA
The Court noted that the second set of applicants had
complained that Chapter II of RIPA allowed a wide range of public bodies to
request access to communications data from communications companies in various
ill-defined circumstances.
It first rejected a Government argument that the applicants’
application was inadmissible, finding that as investigative journalists their
communications could have been targeted by the procedures in question. It then
went on to focus on the Convention concept that any interference with rights
had to be “in accordance with the law”.
It noted that European Union law required that any regime
allowing access to data held by communications service providers had to be
limited to the purpose of combating “serious crime”, and that access be subject
to prior review by a court or independent administrative body. As the EU legal
order is integrated into that of the UK and has primacy where there is a
conflict with domestic law, the Government had conceded in a recent domestic
case that a very similar scheme introduced by the Investigatory Powers Act 2016
was incompatible with fundamental rights in EU law because it did not include
these safeguards. Following this concession, the High Court ordered the Government
to amend the relevant provisions of the Act. The Court therefore found that as
the Chapter II regime also lacked these safeguards, it was not in accordance
with domestic law as interpreted by the domestic authorities in light of EU
law. As such, there had been a violation of Article 8.
Intelligence sharing procedures
The Court found that the procedure for requesting either the
interception or the conveyance of intercept material from foreign intelligence
agencies was set out with sufficient clarity in the domestic law and relevant
code of practice. In particular, material from foreign agencies could only be
searched if all the requirements for searching material obtained by the UK
security services were fulfilled. The Court further observed that there was no
evidence of any significant shortcomings in the application and operation of
the regime, or indeed evidence of any abuse.
The intelligence sharing regime therefore did not violate
Article 8.
Article 10
The Court declared complaints by the third set of applicants
under this provision to be inadmissible but found a violation of the rights of
the second set of applicants, who had complained that the bulk surveillance
regimes under section 8(4) and Chapter II of RIPA did not provide sufficient
protection for journalistic sources or confidential journalistic material.
In respect of the bulk interception regime, the Court
expressed particular concern about the absence of any published safeguards
relating both to the circumstances in which confidential journalistic material
could be selected intentionally for examination, and to the protection of
confidentiality where it had been selected, either intentionally or otherwise,
for examination. In view of the potential chilling effect that any perceived interference
with the confidentiality of journalists’ communications and, in particular,
their sources might have on the freedom of the press, the Court found that the
bulk interception regime was also in violation of Article 10.
When it came to requests for data from communications
service providers under Chapter II, the Court noted that the relevant
safeguards only applied when the purpose of such a request was to uncover the
identity of a journalist’s source. They did not apply in every case where there
was a request for a journalist’s communications data, or where collateral
intrusion was likely. In addition, there were no special provisions restricting
access to the purpose of combating “serious crime”. As a consequence, the Court
also found a violation of Article 10 in respect of the Chapter II regime.
Article 6
The third set of applicants complained that the IPT lacked
independence and impartiality. However, the Court noted that the IPT had
extensive power to consider complaints concerning wrongful interference with
communications, and those extensive powers had been employed in the applicants’
case to ensure the fairness of the proceedings. Most notably, the IPT had
access to open and closed material and it had appointed Counsel to the Tribunal
to make submissions on behalf of the applicants in the closed proceedings.
Furthermore, the Court accepted that in order to ensure the efficacy of the
secret surveillance regime, which was an important tool in the fight against
terrorism and serious crime, the restrictions on the applicants’ procedural
rights had been both necessary and proportionate and had not impaired the
essence of their Article 6 rights.
Overall, the applicants’ complaint was manifestly
ill-founded and had to be rejected.
Other Articles
The third set of applicants complained under Article 14, in
conjunction with Articles 8 and 10, that those outside the United Kingdom were
disproportionately likely to have their communications intercepted as the law
only provided additional safeguards to people known to be in Britain.
The Court rejected this complaint as manifestly ill-founded.
The applicants had not substantiated their argument that people outside the UK
were more likely to have their communications intercepted. In addition, any
possible difference in treatment was not due to nationality but to geographic
location, and was justified.
Just satisfaction (Article 41)
The applicants did not claim any award in respect of
pecuniary or non-pecuniary damage and the Court saw no reason to make one.
However, it made partial awards in respect of the costs and expenses claimed by
the applicants in the first and second of the joined cases. The applicants in
the third joined case made no claim for costs and expenses.
Separate opinions
Judges Pardalos and Eicke expressed a joint partly
dissenting and partly concurring opinion, and Judge Koskelo, joined by Judge
Turkovic, expressed a partly concurring, partly dissenting opinion. These
opinions are annexed to the judgment.
