BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
operation. In the Court’s view, this situation is materially different from the
targeted surveillance of a journalist through either the section 8(1) or the
section 8(4) regimes. As the interception of any journalistic
communications would be inadvertent, the degree of interference with
journalistic communications and/or sources could not be predicted at the
outset. Consequently, it would not be possible at the authorisation stage for
a judge or other independent body to assess whether any such interference
would be “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.
450. In Weber and Saravia the Court held that the interference with
freedom of expression caused by strategic monitoring could not be
characterised as particularly serious as it was not aimed at monitoring
journalists and the authorities would know only when examining the
intercepted telecommunications, if at all, that a journalist’s communications
had been monitored (see Weber and Saravia, cited above, § 151). Therefore,
it accepted that the initial interception, without examination of the
intercepted material, did not constitute a serious interference with Article 10
of the Convention. Nevertheless, as the Court has already observed, in the
current, increasingly digital, age technological capabilities have greatly
increased the volume of communications traversing the global Internet, and
as a consequence surveillance which is not targeted directly at individuals
has the capacity to have a very wide reach indeed, both within and without
the territory of the surveilling State (see paragraphs 322-323 above). As the
examination of a journalist’s communications or related communications
data by an analyst would be capable of leading to the identification of a
source, the Court considers it imperative that domestic law contain robust
safeguards regarding the storage, examination, use, onward transmission
and destruction of such confidential material. Moreover, even if a
journalistic communication or related communications data have not been
selected for examination through the deliberate use of a selector or search
term known to be connected to a journalist, if and when it becomes apparent
that the communication or related communications data contain confidential
journalistic material, their continued storage and examination by an analyst
should only be possible if authorised by a judge or other independent and
impartial decision-making body invested with the power to determine
whether continued storage and examination is “justified by an overriding
requirement in the public interest”.
(d) Application of the aforementioned test to the facts of the present case
451. In Weber and Saravia the Court expressly recognised that the
impugned surveillance regime had interfered with the first applicant’s right
to freedom of expression as a journalist (see Weber and Saravia, cited
above, §§ 143-145). In the present case, the Court has accepted that the
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