BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
see paragraph 86 below) in almost every case, which would radically
undermine the efficacy of the section 8(4) regime.
52. Finally, the applicants had argued that the protection afforded by
Article 10 of the Convention applied to investigatory NGOs in the same
way it applied to journalists. Amnesty International initially alleged before
the IPT that there were likely to be no adequate arrangements for material
protected by legal professional privilege, a complaint which was
subsequently “hived off” to be dealt with in the Belhadj case (see
paragraphs 99-101 below), to which Amnesty International was joined as an
additional claimant. No similar argument was made in respect of NGO
confidence until 17 November 2014 (after the first and second open
hearings). As the IPT considered that this argument could have been raised
at any time, in its judgment it had been raised “far too late” to be
incorporated into the ambit of the proceedings.
53. With regard to the remaining Article 10 complaints, the IPT noted
that there was no separate argument over and above that arising in respect of
Article 8. Although the IPT had regard to Sanoma Uitgevers B.V.
v. the Netherlands [GC], no. 38224/03, 14 September 2010, it emphasised
that the applicants’ case did not concern targeted surveillance of journalists
or non-governmental organisations. In any case, in its view, in the context
of untargeted monitoring via a section 8(4) warrant, it would be “clearly
impossible” to anticipate a judicial pre-authorisation prior to the warrant
limited to what might turn out to impact upon Article 10. Although the IPT
accepted that an issue might arise in the event that, in the course of
examination of the contents, some question of journalistic confidence arose,
there were additional safeguards in the IC Code in relation to treatment of
such material.
54. Following the publication of the judgment, the parties were invited
to make submissions on whether, prior to the disclosures made to the IPT,
the legal regime in place in respect of the PRISM issue complied with
Articles 8 and 10, and on the proportionality and lawfulness of any alleged
interception of their communications. The IPT did not see any need for
further submissions on the proportionality of the section 8(4) regime as a
whole.
C. The IPT’s second judgment of 6 February 2015
55. In its second judgment of 6 February 2015, the IPT considered
whether, prior to its December 2014 judgment, the PRISM or Upstream
arrangements breached Article 8 and/or 10 of the Convention.
56. It agreed that it was only by reference to the 9 October disclosure as
amended (see paragraphs 33 and 36 above) that it was satisfied the regime
was “in accordance with the law”. The IPT was of the view that without the
disclosures made, there would not have been adequate signposting, as was
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