Quick answer
In Big Brother Watch and Others v. the United Kingdom (Grand Chamber, 25 May 2021, applications nos. 58170/13, 62322/14 and 24960/15), the European Court of Human Rights held that the United Kingdom’s bulk interception regime (section 8(4) of the Regulation of Investigatory Powers Act 2000) and its regime for obtaining communications data from service providers both violated Article 8 and Article 10. Crucially, the Court also held that bulk interception is not, in itself, contrary to the Convention — the violations arose from a lack of adequate safeguards, not from bulk interception as such. A third regime, for receiving intelligence from foreign services, was found not to violate Article 8 (by twelve votes to five).
Background and facts
The three joined applications were brought following the 2013 revelations by Edward Snowden about the electronic-surveillance programmes operated by the intelligence services of the United States and the United Kingdom. The applicants were journalists, campaigning organisations and civil-liberties groups — including Big Brother Watch, English PEN, the Open Rights Group, the Bureau of Investigative Journalism, Amnesty International, Liberty, Privacy International and the American Civil Liberties Union — who believed that, because of the nature of their work, their communications were liable to have been intercepted or obtained by the UK intelligence services.
They challenged three distinct regimes then operating under the Regulation of Investigatory Powers Act 2000 (RIPA): (1) the bulk interception of cross-border communications under section 8(4); (2) the receipt of intelligence from foreign governments and intelligence agencies; and (3) the acquisition of communications data from communications service providers under Chapter II of RIPA.
The complaint
The applicants complained under:
- Article 8 (right to respect for private life and correspondence) — that the three regimes amounted to unjustified interference with their communications; and
- Article 10 (freedom of expression) — that the regimes lacked sufficient protection for confidential journalistic material and sources.
The Court’s reasoning
Bulk interception is not, in itself, unlawful
The Grand Chamber accepted that a decision to operate a bulk interception regime falls, in principle, within a State’s margin of appreciation. Faced with the modern threats of global terrorism and serious cross-border crime, and the ease with which hostile actors move across networks, a State may legitimately choose to operate such a regime. The question was therefore not whether bulk interception could ever be compatible with the Convention, but whether the particular regime was accompanied by sufficient safeguards against abuse.
The requirement of “end-to-end” safeguards
The Court updated its case law on secret surveillance and set out the safeguards a bulk interception regime must contain. In particular it required “end-to-end” safeguards: an assessment of necessity and proportionality at each stage of the process; independent authorisation at the outset, when the object and scope of the operation are being defined; and independent oversight and an effective remedy after the event. It emphasised that the categories of selectors and search terms used to examine intercepted material must be subject to adequate independent control.
Where the UK regimes fell short
Measured against those standards, the section 8(4) bulk interception regime was found to be deficient. Its principal failings were the absence of independent authorisation at the outset, the fact that the categories of selectors were not subject to prior independent authorisation, and the lack of adequate safeguards for the selection and examination of material. These shortcomings meant the regime did not contain sufficient “end-to-end” guarantees and therefore violated Article 8.
The Chapter II regime for acquiring communications data from service providers was also found to violate Article 8, as it did not meet the Convention’s “in accordance with the law” requirement. By contrast, the regime for the receipt of intelligence from foreign intelligence services was held, by twelve votes to five, to contain sufficient safeguards and not to violate Article 8.
Protection of journalism under Article 10
Turning to Article 10, the Court stressed the special importance of the confidentiality of journalistic sources and material. Both the section 8(4) and the Chapter II regimes lacked adequate protections in this respect — there was no requirement that the use of selectors or search terms known to be connected to a journalist be authorised by a judge or other independent body, and no equivalent safeguard where the purpose was to identify a source. The Court therefore found a violation of Article 10 in respect of both regimes.
The judgment
The Grand Chamber held:
- unanimously, that there had been a violation of Article 8 in respect of the section 8(4) bulk interception regime;
- unanimously, that there had been a violation of Article 8 in respect of the Chapter II regime for obtaining communications data;
- by twelve votes to five, that there had been no violation of Article 8 in respect of the receipt of intelligence from foreign intelligence services;
- unanimously, that there had been a violation of Article 10 in respect of both the section 8(4) regime and the Chapter II regime.
Why this case matters
Big Brother Watch — decided the same day as Centrum för rättvisa v. Sweden — is the Grand Chamber’s defining statement on mass surveillance under the Convention. Its significance is twofold:
- Bulk interception is permissible, but conditional. The Court did not outlaw mass surveillance; it made its lawfulness depend on a demanding set of “end-to-end” safeguards — independent authorisation at the outset, control over selectors, and effective independent oversight and remedies.
- Journalism receives heightened protection. Surveillance regimes must contain specific safeguards before selectors linked to journalists or their sources are used, reflecting the chilling effect of surveillance on a free press.
The judgment shapes how every Council of Europe state must design and supervise its interception powers, and it is a central authority in litigation over data retention, intelligence sharing and the surveillance of communications.
What this means for applicants
For journalists, activists and anyone concerned about state surveillance of their communications, Big Brother Watch provides the framework:
- The challenge is to the safeguards, not the existence of surveillance. A regime is judged on whether it has independent authorisation, control of selectors and effective oversight — the “end-to-end” test.
- Journalistic material has special status. The absence of prior independent authorisation for selectors targeting journalists or their sources is itself a violation of Article 10.
- Victim status is broad. Because secret surveillance is by nature hidden, applicants who plausibly risk being affected can bring a challenge to the regime itself, without proving their own communications were intercepted.
This page summarises a leading judgment and is not legal advice on any individual case. Whether a surveillance regime complies with Article 8 and Article 10 depends on its precise authorisation, selector-control and oversight arrangements.
Frequently Asked Questions
What did Big Brother Watch v. UK decide?
The Grand Chamber held that the UK’s bulk interception regime (RIPA section 8(4)) and its regime for obtaining communications data both violated Article 8 and Article 10 because of inadequate safeguards. It also held that a bulk interception regime is not in itself contrary to the Convention.
Did the Court ban mass surveillance?
No. The Court held that operating a bulk interception regime falls within a State’s margin of appreciation. What it required was a set of “end-to-end” safeguards — independent authorisation at the outset, control over the selectors used, and effective independent oversight and remedies.
What are “end-to-end” safeguards?
They are safeguards applied at every stage of interception: an assessment of necessity and proportionality throughout, independent authorisation when the operation is defined, and independent oversight and an effective remedy afterwards.
Why did the case matter for journalists?
The Court found a violation of Article 10 because the regimes lacked prior independent authorisation before selectors or search terms linked to journalists or their sources were used, undermining the confidentiality essential to a free press.
Was every part of the UK system found unlawful?
No. While the section 8(4) and Chapter II regimes violated Articles 8 and 10, the regime for receiving intelligence from foreign intelligence services was held, by twelve votes to five, not to violate Article 8.
Convention Articles engaged
Cases against this state
Related ECHR cases
- Biao v. Denmark
- Otegi Mondragon v. Spain
- The Sunday Times v. the United Kingdom
- Delfi AS v. Estonia
- Magyar Helsinki Bizottság v. Hungary
- Perinçek v. Switzerland
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