BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
operation of the section 8(4) regime interfered with all of the applicants’
rights under Article 8 of the Convention (see paragraphs 324-331 above).
As the applicants in the second of the joined cases’ were a newsgathering
organisation and a journalist respectively, the Court would accept that the
section 8(4) regime also interfered with their right under Article 10 of the
Convention to freedom of expression as journalists.
452. As already noted, the section 8(4) regime had a clear basis in
domestic law (see paragraphs 365 and 366 above). However, in assessing
foreseeability and necessity under Article 8 of the Convention, the Court
identified the following deficiencies in the regime and its attendant
safeguards: the absence of independent authorisation (see paragraph 377
above); the failure to identify the categories of selectors in the application
for a warrant (see paragraphs 381-382 above); and the absence of prior
internal authorisation for selectors linked to an identifiable individual (see
paragraph 382 above).
453. Nonetheless, some additional safeguards in respect of confidential
journalistic material were set out in paragraphs 4.1-4.3 and 4.26-4.31 of the
IC Code (see paragraph 96 above). According to paragraph 4.1, any
application for a warrant had to state whether the interception was likely to
give rise to a collateral infringement of privacy, including where journalistic
communications were involved and, where possible, it had to specify the
measures to be taken to reduce the extent of the collateral intrusion.
However, paragraph 4.1 only required the Secretary of State to take these
circumstances and measures into account when considering an application
for a section 8(1) warrant, that is, a warrant authorising targeted
interception. Paragraph 4.2 further provided that “particular consideration
should also be given” in cases where confidential journalistic material might
have been involved, and paragraph 4.26 stated that “particular
consideration” had to be given to the interception of communications that
involved confidential journalistic material.
454. According to the Government paragraph 4.28 also applied to
confidential journalistic material. Where the intention was to acquire
confidential personal information, paragraph 4.28 indicated that the reasons
and the specific necessity and proportionality of doing so had to be
documented clearly. If the acquisition of such material was likely but not
intended, any possible mitigation steps had to be considered and, if none
were available, consideration had to be given to whether special handling
arrangements were required within the intercepting agency (see
paragraph 96 above). The Court notes, however, that in paragraph 4.26 of
the IC Code, “confidential personal information” appeared to be something
distinct from “confidential journalistic material” (see paragraph 96 above).
455. As for the storage of confidential material, paragraph 4.29 of the
IC Code provided that such material could only be retained where it was
necessary and proportionate for one of the authorised purposes in
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