BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
expression. However, it considered that the interference would be greater if
those communications were selected for examination. If that were the case
the interference could only be “justified by an overriding requirement in the
public interest” if it was accompanied by sufficient safeguards. In particular,
the circumstances in which such communications could be selected
intentionally for examination would have to be set out sufficiently clearly in
domestic law, and there would have to be adequate measures in place to
ensure the protection of confidentiality where such communications had
been selected, either intentionally or otherwise, for examination. In the
absence of any publicly available arrangements limiting the intelligence
services’ ability to search and examine confidential journalistic material
other than where it was justified by an overriding requirement in the public
interest, the Chamber found that there had also been a violation of
Article 10 of the Convention.
2. The parties’ submissions
(a) The applicants
431. The applicants in the second of the joined cases argued that the
bulk interception regime was in breach of Article 10 because the large scale
interception and the maintaining of large databases of information had a
chilling effect on freedom of communication for journalists.
432. In view of the fundamental importance of press freedom, the
applicants submitted that any interference with journalistic freedom, and in
particular the right to maintain confidentiality of sources, had to be attended
with legal procedural safeguards commensurate with the importance of the
principle at stake. In particular, the notion of “in accordance with the law”
required that where a measure was capable of identifying journalistic
sources or revealing journalistic material it had to have been authorised by a
judge or other independent and impartial decision-making body; the review
had to be ex ante; and the authorising body had to be invested with the
power to determine whether it was “justified by an overriding requirement
in the public interest” and, in particular, whether a less intrusive measure
might have sufficed to serve the overriding public interest (see Sanoma
Uitgevers B.V. v. the Netherlands [GC], no. 38224/03, 14 September 2010).
None of these safeguards were present in the section 8(4) regime.
(b) The Government
433. The Government argued first, that there was no authority in the
Court’s case-law for the proposition that prior judicial (or independent)
authorisation was required for the operation of a strategic monitoring regime
by virtue of the fact that some journalistic material might be intercepted in
the course of that regime’s operation. Rather, the Court had drawn a sharp
distinction between the strategic monitoring of communications and/or
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