CHAPTER 5: LEGAL CONSTRAINTS
that were in place to restrict the use and dissemination of material were sufficient to
protect journalists’ freedom of expression and the confidentiality of their sources.67
5.50.
However, in a Dutch case the ECtHR held that two investigative journalists had
suffered a disproportionate interference with their right to privacy as a result of covert
surveillance. In that case, the purpose of the surveillance was to identify a journalistic
source and there was insufficient judicial oversight to render the intervention legal.68
That conclusion was echoed in a subsequent case. The ECtHR stressed that special
safeguards must be in place in order to protect the confidentiality of journalistic
sources, stating: “First and foremost among these safeguards is the guarantee of
review by a judge or other independent and impartial decision-making body.”69
5.51.
The Bureau of Investigative Journalism has issued proceedings before the ECtHR
arguing that the current protections provided under UK law do not afford sufficient
protection to journalists’ sources.70 The matter has been communicated to the
Government. Meanwhile another challenge has been filed in the IPT by a Sun
journalist, concerning access to his phone records.71
5.52.
A third category of protected communications, which has not been considered by the
ECtHR, is parliamentary correspondence. A claim has been issued before the IPT
concerning the interception of communications to and from Parliamentarians.72 A
hearing on preliminary issues of law will take place in July 2015.
5.53.
Other communications may be specifically protected. The ECtHR has also held that
medical information attracts the protection of Article 8. In Z v Finland, the fact that the
applicant was HIV positive was disclosed in the press reporting of her trial. The court
held that her right to respect for private life had been breached.73
Pending cases before the ECtHR
5.54.
67
68
69
70
71
72
73
74
The case of Big Brother Watch v UK was lodged before the ECtHR in 2013,74 and
communicated to the UK Government. It concerns bulk data collection and data
sharing. In addition, the Liberty ECtHR Application (5.35 above) and the application
brought by the Bureau of Investigative Journalists (5.51 above) have been
communicated to the UK Government.
Weber v Germany, paras 150-152.
Telegraaf Media Nederland Landelijke Media BV and others v The Netherlands (Application no.
39315/06, judgment of 22 November 2012), paras 96-102.
Sanoma Uitgevers BV v The Netherland (Application no. 38224/03, judgment of 14 September 2010),
para 90.
Bureau of Investigative Journalism and Alice Ross v UK (Application no. 62322/14). The current
Interception of Communications Code of Practice [Interception Code] sets out some safeguards at
sections 3.2, 3.6 and 3.9.
No record of the case number is available on the IPT website yet.
Lucas and Moulsecoomb v the Security Service and others (IPT/14/79/CH and 14/80CH). It has recently
been joined with a similar claim issued by George Galloway MP.
Z v Finland (Application no. 22009/93, judgment of 25 March 1997).
Application no. 58170/13.
83