BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
comply with Article 19(3) of the ICCPR, which required restrictions on
expression to “only be such as are provided by law and are necessary” for
the protection of the rights and reputations of others, national security,
public order, or public health or morals. Mass surveillance programmes
provided significant challenges to the requirement of accessible legislation,
due to the complexity of how surveillance technologies functioned, vague
legal standards for intercepting communications, and complicated and often
classified administrative frameworks. In addition, there was a serious
proportionality concern relating to interference with the work of journalists
and protection of their sources. As human rights law afforded
confidentiality a high standard of protection, restrictions should be
exceptional and implemented by judicial authorities only and
circumventions not authorised by judicial authorities according to clear and
narrow legal rules should not be used to undermine source confidentiality.
In this regard, the scope of the protection of confidential communications
had to take account of the broad understanding of “journalist” under the
ICCPR.
(iv) Article 19
438. Article 19 urged the Court to extend the same protection to NGOs
as it normally extended to journalists.
(v) The Helsinki Foundation for Human Rights
439. The Helsinki Foundation submitted that the protection of
journalistic sources was undermined not only by the surveillance of the
content of journalists’ communications, but also by the surveillance of
related metadata which could, by itself, allow for the identification of
sources and informants. It was especially problematic that confidential
information could be acquired without the journalists’ knowledge or
control, thereby depriving them of their right to invoke confidentiality, and
their sources of their ability to rely on guarantees of confidentiality.
(vi) The Media Lawyers’ Association (“MLA”)
440. The MLA expressed concern that mass surveillance regimes were
capable of intercepting journalistic communications and communications
data which could identify sources. In their view, the mere interception of
journalistic material could interfere with Article 10 of the Convention, even
if the material was not actually analysed. It was therefore imperative that
appropriate safeguards were in place to protect the confidentiality of
journalistic sources, regardless of the purpose for which information was
collected. Moreover, a regime permitting States to intercept journalists’
communications without prior judicial authorisation was more likely to
affect journalism that was in the public interest because the nature of such
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