BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
(b) Article 10 in the bulk interception context
446. In Weber and Saravia the Court recognised that the “strategic
monitoring” regime had interfered with the first applicant’s freedom of
expression as a journalist. However, in so finding it considered it decisive
that the surveillance measures were not aimed at monitoring journalists or
uncovering journalistic sources. As such, it found that the interference with
the first applicant’s freedom of expression could not be characterised as
particularly serious and, in view of the attendant safeguards, it declared her
complaints inadmissible as manifestly ill-founded (see Weber and Saravia,
cited above, §§ 143-145 and 151).
(c) The approach to be adopted in the present case
447. Under the section 8(4) regime, confidential journalistic material
could have been accessed by the intelligence services either intentionally,
through the deliberate use of selectors or search terms connected to a
journalist or news organisation, or unintentionally, as a “bycatch” of the
bulk interception operation.
448. Where the intention of the intelligence services is to access
confidential journalistic material, for example, through the deliberate use of
a strong selector connected to a journalist, or where, as a result of the choice
of such strong selectors, there is a high probability that such material will be
selected for examination, the Court considers that the interference will be
commensurate with that occasioned by the search of a journalist’s home or
workplace; regardless of whether or not the intelligence services’ intention
is to identify a source, the use of selectors or search terms connected to a
journalist would very likely result in the acquisition of significant amounts
of confidential journalistic material which could undermine the protection
of sources to an even greater extent than an order to disclose a source (see
Roemen and Schmit, cited above, § 57). Therefore, the Court considers that
before the intelligence services use selectors or search terms known to be
connected to a journalist, or which would make the selection of confidential
journalistic material for examination highly probable, the selectors or search
terms must have been authorised by a judge or other independent and
impartial decision-making body invested with the power to determine
whether they were “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.,
cited above, §§ 90-92).
449. Even where there is no intention to access confidential journalistic
material, and the selectors and search terms used are not such as to make the
selection of confidential journalistic material for examination highly
probable, there will nevertheless be a risk that such material could be
intercepted, and even examined, as a “bycatch” of a bulk interception
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