BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
173
1996, § 39 Reports of Judgments and Decisions 1996-II); and authorisation
could only be granted by a judge or other independent adjudicative body.
478. The applicants submitted that as journalists involved in matters of
public interest, who were exercising a role of public watchdog, the
protection afforded by Article 10 was of critical importance to them.
479. In respect of the section 8(4) regime, the applicants argued that the
interception of material gathered through bulk surveillance was not attended
by adequate safeguards. First of all, the definition of “confidential
journalistic material” in the IC Code of Practice was too narrow, as it was
limited to material acquired for the purpose of journalism and held subject
to an undertaking to hold it in confidence. This definition was inconsistent
with the Court’s broader definition (for example, in Telegraaf Media
Nederland Landelijke Media B.V. and Others v. the Netherlands,
no. 39315/06, § 86, 22 November 2012). Secondly, the regime did not
comply with the strict requirements of Article 10 where surveillance
measures might reveal journalistic source material (in the applicants’
submissions, the existence of an “overriding public interest” and judicial –
or at least independent – authorisation).
480. With regard to the Chapter II regime, the applicants complained
that the ACD Code failed to recognise that communications data could be
privileged, and that the obtaining of communications data which constituted
confidential journalistic material was as intrusive as obtaining content, since
a single piece of communications data could reveal the identity of a
journalist’s source, and when aggregated and subjected to modern
data-mining technology, it could reveal an enormous range of
(journalistically privileged) information. The applicants further complained
that in most cases authorisation for the acquisition of communications data
was provided by a designated person, who was not sufficiently independent
of the executive, or even of the agency requesting the disclosure. While an
additional safeguard now existed requiring that applications made in order
to identify a journalist’s source be authorised by a judge, they did not apply
where the identification of the source was incidental rather than intended.
(b) The Government
481. In the Government’s submissions, prior authorisation was the only
respect in which the applicants contended that the position regarding the “in
accordance with the law” test might differ under Article 10 from that under
Article 8, and in respect of which they asserted that their identity as
journalists might be material to the analysis. However, there was no
authority in the Court’s case-law for the proposition that prior judicial (or
independent) authorisation was required for a strategic monitoring regime
by virtue of the fact that some journalistic material might be intercepted in
the course of that regime’s operation. On the contrary, the Court had drawn
a sharp and important distinction between the strategic monitoring of