BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
communications data, which might inadvertently “sweep up” some
journalistic material, and measures that targeted journalistic material (see
Weber and Saravia, cited above, § 151, and contrast Sanoma Uitgevers
B.V., cited above, and Telegraaf Media Nederland Landelijke Media B.V.
and Others v. the Netherlands, no. 39315/06, 22 November 2012). A
requirement of prior judicial authorisation would make no sense in the
context of bulk interception, since the judge could only be told that there
was a possibility that the execution of the warrant might result in the
interception of some confidential journalistic material.
434. That being said, the Government accepted the Chamber’s
conclusion that further protection was required at the point of selection for
examination. It therefore confirmed that the IC Code had been amended to
provide that “[p]articular consideration should be given to the interception
of communications or the selection for examination of content containing
information where individuals might reasonably assume a high degree of
confidentiality. This includes where the communications contain
information that is legally privileged; confidential journalistic material or
where communications identify a journalist’s source”.
(c) The third party interveners
(i) The Government of France
435. The Government of France argued that the surveillance of
journalists was permissible under Article 10 of the Convention if it pursued
a legitimate aim and was necessary, and if the measure did not target the
journalists and was not aimed at identifying their sources. No parallel could
be drawn between the situation where journalists’ communications were
intercepted by chance, and where a decision of the national authorities
required a journalist to reveal his or her sources.
(ii) The Government of the Kingdom of Norway
436. The Norwegian Government submitted that the wide margin of
appreciation allowed under Article 8 with regard to the decision to introduce
a bulk interception regime also logically applied when the decision was
scrutinised from the point of view of Article 10. It would defeat the nature
and purpose of a bulk interception regime if the Court were to subject the
decision to set it up to the “justified by an overriding requirement in the
public interest” test simply because some of the intercepted communications
might involve contact with journalists.
(iii) The United Nations’ Special Rapporteur on the promotion of the right to
freedom of opinion and expression
437. The Special Rapporteur argued that surveillance measures
interfered with the right to freedom of expression and therefore had to
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