BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
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sources. Generally the authorities would only know when examining the
intercepted communications if a journalist’s communications had been
intercepted. Consequently, it confirms that the interception of such
communications could not, by itself, be characterised as a particularly
serious interference with freedom of expression (Weber and Saravia, cited
above, § 151). However, the interference will be greater should these
communications be selected for examination and, in the Court’s view, will
only be “justified by an overriding requirement in the public interest” if
accompanied by sufficient safeguards relating both to the circumstances in
which they may be selected intentionally for examination, and to the
protection of confidentiality where they have been selected, either
intentionally or otherwise, for examination.
493. In this regard, paragraphs 4.1 – 4.8 of the IC Code require special
consideration to be given to the interception of communications that involve
confidential journalistic material and confidential personal information (see
paragraph 90 above). However, these provisions appear to relate solely to
the decision to issue an interception warrant. Therefore, while they might
provide adequate safeguards in respect of a targeted warrant under
section 8(1) of RIPA, they do not appear to have any meaning in relation to
a bulk interception regime. Furthermore, the Court has already criticised the
lack of transparency and oversight of the criteria for searching and selecting
communications for examination (see paragraphs 339, 340, 345 and 387
above). In the Article 10 context, it is of particular concern that there are no
requirements – at least, no “above the waterline” requirements – either
circumscribing the intelligence services’ power to search for confidential
journalistic or other material (for example, by using a journalist’s email
address as a selector), or requiring analysts, in selecting material for
examination, to give any particular consideration to whether such material is
or may be involved. Consequently, it would appear that analysts could
search and examine without restriction both the content and the related
communications data of these intercepted communications.
494. Safeguards do exist in respect of the storing of confidential material
once identified. For example, paragraph 4.29 of the IC Code (see
paragraph 90 above) provides that such material should only be retained
where it is necessary and proportionate for one of the authorised purposes in
section 15(4) of RIPA, and it must be destroyed securely when it is no
longer needed for one of these purposes. Furthermore, according to
paragraph 4.30, if it is retained or disseminated to an outside body,
reasonable steps should be taken to mark the information as confidential;
and paragraph 4.31 requires that the Interception of Communications
Commissioner be notified of the retention of such material as soon as
reasonably practicable, and such material should be made available to him
on request.