On May 25, 2021, the Grand Chamber of the European Court of Human Rights issued its judgment in Big Brother Watch and Others v. The United Kingdom [3]. In 2013, 2014, and 2015, a number of civil liberties organizations lodged complaints with the Court after Edward Snowden revealed intelligence surveillance and sharing programs operated by the U.S. and the UK. The applicants believed that because of the nature of the programs, some of their communications and/or communications data were likely to have been intercepted by UK and/or U.S. intelligence agencies. They argued that the programs violated the Article 8 right to respect for private life, family life, and correspondence. Applicants who worked in the field of journalism also raised complaints under the Article 10 right to freedom of expression. The September 2018 judgment found that the bulk intercept regime and the framework for collecting data from communications service providers violated Article 8 and Article 10, but that the regime for obtaining intercept material from foreign governments was Convention compliant.

As outlined in this press release [4], the Grand Chamber largely agreed. With regard to the regime for bulk interception, though the Court acknowledged that the UK had wide discretion in determining what type of surveillance framework was necessary to protect national security (and hence the existence of such a regime itself did not violate the Convention), the Court held that the UK’s approach to surveillance had to be adapted to reflect the specific features of a bulk interception regime with which there was both an “inherent risk of abuse and a legitimate need for secrecy.” It then set out three requirements for such a regime: (1) “end to end safeguards” that consider the necessity and proportionality of the measures taken; (2) independent authorization at the outset of the process; (3) the regime should be subject to supervision and independent ex post facto review. The UK regime did not satisfy these standards, despite the existence of judicial remedies and the Investigatory Powers Tribunal. Therefore, the Court held that the system did not restrict the interference with privacy to what was “necessary in a democratic society.”

With regard to the receipt of intelligence from foreign governments/intelligence agencies, the Court found no violation of Article 8 because the UK had set forth clear and detailed regarding when intelligence services are authorized to request information from foreign intelligence agencies and how to examine, use, and store the material once received.

Regarding Article 10, the Court underscored the importance of protecting journalists’ sources and how compromising a source may lead to the undermining of the “vital public-watchdog role of the press.” The Court was concerned that the UK law governing bulk interception contained no special safeguards that would protect communications connected to journalists, in particular, authorization of a judge to use search terms known to be connected to a journalist. Therefore, the Court found a violation of Article 10. However, the Court did not find a breach of Article 10 in connection with the regime for receiving intercept material from foreign governments or service providers.

With regard to requests for data from communications service providers under Chapter II of the Regulation of Investigatory Powers Act 2000, the Court agreed with the Chamber’s earlier findings that there had been violations of Article 8 and Article 10 because the operation of the regime did not comply with the Act, i.e., it was not undertaken in accordance with the law.

Judge Lemmens, Vehabović, and Bošnjak filed a joint partly concurring opinion (p. 159) which agreed with the majority on all parts except for its finding that there was no violation of Articles 8 and 10 in respect of the receipt of intelligence from foreign intelligence services. Judge Pinto de Albuquerque (p. 169) agreed.

Judge Lemmens, Vehabović, Ranzoni, and Bošnjak filed a joint partly dissenting opinion (p. 201) on the same point.