BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
section 15(4) of RIPA, and it had to be destroyed securely when it was no
longer needed for one of those purposes (see paragraph 96 above).
Furthermore, according to paragraph 4.30, if it was retained or disseminated
to an outside body, reasonable steps had to be taken to mark the information
as confidential. Where there was any doubt as to the lawfulness of the
proposed dissemination of confidential information, advice had to be sought
from a legal adviser within the relevant intercepting agency and before any
further dissemination of the material could take place (see paragraph 96
above). Finally paragraph 4.31 required that the IC Commissioner be
notified of the retention of such material as soon as reasonably practicable,
and that such material be made available to him on request (see
paragraph 96 above).
456. In light of the above, the Court would accept that the safeguards in
the IC Code concerning the storage, onward transmission and destruction of
confidential journalistic material were adequate. However, the additional
safeguards in the IC Code did not address the weaknesses identified by the
Court in its analysis of the regime under Article 8 of the Convention, nor
did they satisfy the requirements identified by the Court at
paragraphs 448-450 above. In particular, there was no requirement that the
use of selectors or search terms known to be connected to a journalist be
authorised by a judge or other independent and impartial decision-making
body invested with the power to determine whether it was “justified by an
overriding requirement in the public interest” and whether a less intrusive
measure might have sufficed to serve the overriding public interest. On the
contrary, where the intention was to access confidential journalistic
material, or that was highly probable in view of the use of selectors
connected to a journalist, all that was required was that the reasons for doing
so, and the necessity and proportionality of doing so, be documented
clearly.
457. Moreover, there were insufficient safeguards in place to ensure that
once it became apparent that a communication which had not been selected
for examination through the deliberate use of a selector or search term
known to be connected to a journalist nevertheless contained confidential
journalistic material, it could only continue to be stored and examined by an
analyst if authorised by a judge or other independent and impartial
decision-making body invested with the power to determine whether its
continued storage and examination was “justified by an overriding
requirement in the public interest”. Instead, all that was required by
paragraph 4.2 of the IC Code was that “particular consideration” be given to
any interception which might have involved the interception of confidential
journalistic material, including consideration of any possible mitigation
steps (see paragraph 96 above).
458. In view both of these weakness, and those identified by the Court in
its consideration of the complaint under Article 8 of the Convention, it finds
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