By two judgments of May 25, 2021 (Big Brother Watch and others v. the United Kingdom and Centrum för rättvisa v. Sweden), the Grand Chamber of the European Court of Human Rights has accepted mass surveillance subject to "end-to-end safeguards". Should European citizens fear an " Europe Big Brother "?
"Why do you accept what you find unacceptable? Between satire and pamphlet, George Orwell's novel 1984 still arouses fantasies and invites us to find the means of our own resistance to the world around us. With the multiple threats that beset states in modern societies, the use of a mass interception regime thus questions our freedoms. However, it is this "surveillance" that the European Court of Human Rights has just implicitly accepted by establishing legal safeguards whose practical future is still uncertain.
Indeed, in the first Big Brother Watch and others v. the United Kingdom judgment, the Strasbourg judges specified that it was necessary to verify “whether the domestic legal framework contains sufficient guarantees against abuse, and whether the process is subject to “end-to-end safeguards” […]. In doing so, it will have regard to the actual operation of the system of interception, including the checks and balances on the exercise of power, and the existence or absence of any evidence of actual abuse”. Also, “In assessing whether the respondent State acted within its margin of appreciation […] the Court would need to [address] jointly ‘in accordance with the law’ and ‘necessity’”, and should investigate whether the national legal framework is clearly defined. Unfortunately, the bulk interception regime in the UK suffered from many shortcomings (authorisation by a minister, not by an independent body of the executive, no prior internal authorisation, etc.).
Therefore, this surveillance did not limit the interference with the citizens' right to privacy to the level necessary in a democratic society.
Such a solution was reaffirmed by the second Centrum för rättvisa v. Sweden judgment, according to which it is at national level that “ necessity and proportionality of the measures being taken; that bulk interception should be subject to independent authorisation at the outset, when the object and scope of the bulk operation are being defined; and that the operation should be subject to supervision and independent ex post facto review ».
Again, the Swedish regime had several shortcomings, including the lack of a clear rule on the destruction of intercepted material that does not contain personal data. The Strasbourg Court could therefore only conclude in these two cases that there had been a violation of Article 8 of the European Convention on Human Rights concerning the right to respect for private and family life, home and correspondence.
While waiting for the concrete consequences of these two important judgments in national law: Will Big Brother continue to monitor us?