174
BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
communications and/or communications data, which might inadvertently
“sweep up” some journalistic material, and measures that targeted
journalistic material, particularly for the purposes of identifying sources,
where prior authorisation would be required.
482. With regard to Chapter II of RIPA, the Government pointed out
that pursuant to the amended Acquisition and Disclosure of
Communications Data Code of Practice (“the ACD Code”), where the
identification of a journalist’s source was intended, judicial authorisation
was required. As there was nothing “unintentional” about the operation of
the Chapter II regime, the acquisition of communications data under it
would always be intentional and further safeguards were not required for the
unintentional acquisition of material disclosing a journalist’s source.
483. The Government further argued that the ACD Code provided for
the protection of confidential material, including journalistic material. Such
material should only be retained where necessary and proportionate for one
of the authorised purposes in section 15(4) of RIPA; it must be destroyed
securely when its retention was no longer needed for those purposes; and, if
retained, there had to be adequate information management systems in place
to ensure that retention remained necessary and proportionate. Where it was
retained or disseminated to an outside body, reasonable steps had to be
taken to mark it as confidential, and where any doubt existed, legal advice
had to be sought about its dissemination. Finally, any case where
confidential material was retained had to be notified to the Commissioner as
soon as reasonably practical and the material had to be made available to the
Commissioner on request.
2. The submissions of the third parties
(a) The Helsinki Foundation for Human Rights
484. The Helsinki Foundation submitted that the protection of
journalistic sources was undermined not only by the surveillance of the
content of journalists’ communications, but also by the surveillance of
related metadata which could, by itself, allow for the identification of
sources and informants. It was especially problematic that confidential
information could be acquired without the journalists’ knowledge or
control, thereby depriving them of their right to invoke confidentiality, and
the ability of their sources to rely on guarantees of confidentiality.
(b) The National Union of Journalists (“NUJ”) and the International
Federation of Journalists (“IFJ”)
485. The NUJ and the IFJ submitted that the confidentiality of sources
was indispensable for press freedom. They also expressed concern about the
possible sharing of data retained by the United Kingdom with other
countries. If confidential journalistic material were to be shared with a