CHAPTER 12: CIVIL SOCIETY
standards and those empowered with the mandate to uncover threats to national
security.
Provide for special protection
12.60. A “one-size-fits-all” approach to intrusion into personal affairs is, it is argued, both
unsatisfactory and potentially unlawful. I received a number of submissions on the
subjects of sensitive information, particularly in relation to data that could reveal the
source of journalistic information;68 data protected by LPP; or information that is
deeply personal and private, such as medical records. In light of the important
safeguards required in particular by the ECHR (see 5.44-5.53 above), a number of
those with whom I spoke were of the view that insufficient guidance is found on these
important topics either in RIPA itself or in the Codes of Practice (in contrast to the
heightened scrutiny clearly set out on the face of other legislation, including PACE
ss9-14 and the Police Act 1997 ss97-100). This is a topic on which there have been
updates during the course of the Review, which may meet some of these criticisms.
12.61. Taking journalistic material first, the starting point is that set out by Liberty: “[a] free
press and the right to free speech is dependent on respect for private
correspondence”. By allowing public authorities to discover the source of journalistic
material (without clear safeguards), this important principle is said to be undermined.
This was of pivotal importance to some of the submissions I received, including from
Gavin Millar QC, the Newspaper Society, the Media Lawyers’ Association, the
National Union of Journalists and the Society of Editors. These submissions
highlighted the following important considerations:
(a)
Article 10 of the ECHR and judgments of the ECtHR, set out in Chapter 5,
require scrutiny of decisions to access material in relation to journalist’s
sources.
(b)
Communications data is particularly relevant, as the content of the
communication is often publicly available.
(c)
As other regimes protect this area, RIPA may “undermine” those safeguards.
12.62. Changes were urged to the current scheme, in particular to “safeguard the media’s
role as a public watchdog, which forms one of the cornerstones of a democratic
society”.69 In particular, submissions highlighted the possible need for: i) judicial
scrutiny;70 ii) further requirements in the Codes of Practice;71 or iii) some manner of
“shield law” to protect sources.72
12.63. The use of RIPA to collect material on sources was widely publicised in relation to the
“plebgate” and Chris Huhne affairs.73 Popular opinion surveys demonstrated support
68
69
70
71
72
73
See the submission from the Newspaper Society.
Media Lawyers’ Association, Newspaper Society.
See the submission of the Media Lawyers’ Association.
Ibid.
Submission of Gavin Millar QC.
For a detailed discussion of these points see IOCCO inquiry into the use of RIPA Part I Chapter 2 to
identify journalistic sources, (February 2015),.
231