The judgment expands freedom of expression in the sense that some aspects of the UK’s mass surveillance regime were found unsuitable within the meaning of Article 10 of the Convention, particularly the Section 8(4) regime and Chapter II regime, previously discussed.
Nevertheless, the Chamber could have gone further in its duty to protect and promote freedom of expression. For instance, the Chamber admitted that the section 8(4) regime fell within the margin of appreciation of States since it did not intentionally target journalists. In other words, following the Grand Chamber’s criteria, mass surveillance measures, in general, are compatible with the Convention insofar as they are justified by an overriding requirement in the public interest and are accompanied by the corresponding legal safeguards, authorizations, and arrangements limiting the State Party’s ability to access privileged material.
Likewise, the Chamber noted that the Chapter II regime afforded enhanced protection where data were sought to identify a journalist’s source. However, this meant that any other journalistic information, as long as it does not involves journalistic sources, was left unprotected. In the instant case, since no specific provisions restricted the UK’s ability to access journalistic information when combating “serious crimes,” the Grand Chamber found that the Chapter II regime did not comply with Article 10 of the Convention.
Given the foregoing, the Grand Chamber could have taken this opportunity to provide more specific and detailed guidelines on the procedures to be followed by States parties to examine, store, and access private information. Also, this case presented an ideal opportunity to set out the precautions and steps that must be undertaken by States when communicating data to foreign countries. However, through its judgment, the Chamber allowed for States Parties to the Convention to freely design their domestic legal systems in this regard.
The Chamber also concluded that no violation of Article 10 of the Convention was committed under the intelligence-sharing regime, leaving the door open for the exchange of private and confidential information between States Parties to the Convention and other countries not subject to European law. Also, the Court was silent as to why intercepted data should receive different treatment when requested by the State. In this sense, information ordered or received by the State with the help of a foreign government should be afforded the same level of protection.
Lastly, in the instant case, the Grand Chamber created a new standard to be followed by States parties to guarantee the fulfillment and enjoyment of the right to privacy when implementing electronic surveillance programs, notably bulk interception of communications. This new standard, designed based on the “six Weber safeguards”, imply judges must evaluate whether the domestic legal framework on bulk surveillance clearly defines “(1) the grounds on which bulk interception may be authorized; (2) the circumstances in which an individual’s communications may be intercepted; (3) the procedure to be followed for granting authorization; (4) the procedures to be followed for selecting, examining and using intercept material; (5) the precautions to be taken when communicating the material to other parties; (6) the limits on the duration of interception, the storage of intercept material and the circumstances in which such material must be erased and destroyed; (7) the procedures and modalities for supervision by an independent authority of compliance with the above safeguards and its powers to address non-compliance; (8) the procedures for independent ex post facto review of such compliance and the powers vested in the competent body in addressing instances of non-compliance“.
The decision establishes a binding or persuasive precedent within its jurisdiction.