Report of the Interception of Communications Commissioner - March 2015
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what actual damage the leaked information had caused, or was likely to cause;
whether the damage caused by the provision of that information amounted
to a pressing social need justifying identification (and perhaps sanction) of
the source;
whether there was a disproportionately high risk of collateral intrusion into
legitimate journalistic sources, and;
a lack of detail about how the data would be analysed, processed and retained
within the public authority to prevent unwarranted intrusion.
7.88 The current code of practice and the revised draft code of practice published in
December 2014 do not provide any specific guidance on how DPs should actually apply
the question of necessity, proportionality and collateral intrusion when dealing with data
relating to sensitive professions, in particular journalists. The acquisition and subsequent
analysis of data relating to communications with a journalist is likely to reveal journalistic
sources and therefore general law relating to Article 10 of ECHR and the protection of
journalistic privilege must be considered.
7.89
In light of these findings I made the following recommendations:
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Judicial authorisation must be obtained in cases where communications data
is sought to determine the source of journalistic information.
Where communications data is sought that does not relate to an investigation
to determine the source of journalistic information (for example where the
journalist is a victim of crime or is suspected of committing a crime unrelated
to their occupation) Chapter II of Part I of RIPA 2000 may be used so long as the
DP gives adequate consideration to the necessity, proportionality, collateral
intrusion, including the possible unintended consequence of the conduct. The
revised code of practice contains very little guidance concerning what these
considerations should be and that absence needs to be addressed.
7.90 I was pleased that the Government accepted my recommendations straight away
and committed to implement the recommendations as soon as possible. I note that the
Serious Crime Act, which received Royal Assent on 3rd March 2015 amended section 71
of RIPA 2000 to require the code of practice to include provision designed to protect
the public interest in the confidentiality of journalist sources. In my view however the
implementation of our recommendations required careful consideration and the interim
measure is not ideal.
7.91 Coming back to my concern about whether there has been significant institutional
overuse, the fact that a number of the applications that were examined as part of our
journalist inquiry were not adequately formulated does raise the question as to whether
those applications represent institutional overuse.
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