On 24 April 2019, ARTICLE 19 filed a third-party intervention in the case of Big Brother Watch and Others v. the United Kingdom (58170/15, 62322/14 and 2460/15) following a referral of the case to the Grand Chamber of the European Court of Human Rights (‘the Court’). ARTICLE 19 had previously intervened in the 10 Human Rights Organisations v the United Kingdom (no. 58170/13) case, which was later joined to two other applications, Big Brother Watch and others v the United Kingdom (no. 58170/13) and the Bureau of Investigative Journalism and others v the United Kingdom (no. 62322/14). All three applications were introduced following the revelations by Edward Snowden that the intelligence services of the United Kingdom and the United States of America operated mass surveillance programmes.
The applicants in the joined cases are 14 NGOs and other individuals, who believe that, due to the nature of their activities, their electronic applications were likely to have been intercepted by the UK intelligence services under section 8(4) of the Regulation of Investigatory Powers Act 2000; obtained by the UK intelligence services after being intercepted by foreign governments; and/ or obtained by the UK authorities from Communication Service Providers (‘CSPs’).
In our intervention, ARTICLE 19 argues the following points:
Mass interception powers are, by their very nature, disproportionate.
- The indiscriminate and suspicionless interception of individuals’ communications is inherently disproportionate. By its very nature, surveillance at this scale is incapable of distinguishing between the communications of NGOs, journalists, and other protected professions, those of ordinary persons, and those of individuals suspected of being involved in criminal activity. As a result, mass interception powers are inherently incompatible with the rights to privacy and freedom of expression under Articles 8 and 10 of the European Convention.
- Only targeted surveillance based on reasonable suspicion constitutes a legitimate restriction on the rights to freedom of expression. As a necessity, any surveillance should apply the legal safeguards of judicial authorisation, and a notification requirement.
NGOs should benefit from the same legal protections as the press, including the protection of journalistic sources.
- NGOs perform an important public watchdog function, equivalent to that of the press. Like the press, they must be able to disclose facts in the public interest, comment on them, and contribute to the transparency of public authorities.
- This is particularly important to NGOs, whose reporting and advocacy depends on individuals coming forward with information. This includes activists, whistle-blowers and human rights defenders.
- The Grand Chamber should make clear that any person or organisation, regularly or professionally engaged in the collection and dissemination of information to the public via any means of communication is entitled to the same protection.
Mass surveillance has a chilling effect on the expression of NGOs and the press.
- The use of mass surveillance endangers the public watchdog function of NGOs, it undermines the protection of NGOs sources and the ability of NGOs to carry out their work.
Bulk interception powers represent one of the greatest threats to fundamental rights in the digital age. The Grand Chamber’s decision on these issues will have far-reaching implications for the rights to privacy and freedom of expression far beyond the territory of the Council of Europe for years to come.
ARTICLE 19 therefore urges the Grand Chamber to use this important opportunity to affirm that the indiscriminate interception, storage and analysis of online communications is inherently incompatible with the Convention.