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BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
495. Nevertheless, in view of the potential chilling effect that any
perceived interference with the confidentiality of their communications and,
in particular, their sources might have on the freedom of the press and, in
the absence of any “above the waterline” arrangements limiting the
intelligence services’ ability to search and examine such material other than
where “it is justified by an overriding requirement in the public interest”,
the Court finds that there has also been a violation of Article 10 of the
Convention.
(ii) The Chapter II regime
496. The applicants in the second of the joined cases also complained
under Article 10 of the Convention about the regime for the acquisition of
communications data from CSPs.
497. In considering the applicants’ Article 8 complaint, the Court
concluded that the Chapter II regime was not in accordance with the law as
it permitted access to retained data for the purpose of combating crime
(rather than “serious crime”) and, save for where access was sought for the
purpose of determining a journalist’s source, it was not subject to prior
review by a court or independent administrative body (see paragraph 467
above).
498. The Court acknowledges that the Chapter II regime affords
enhanced protection where data is sought for the purpose of identifying a
journalist’s source, In particular, paragraph 3.77 of the ACD Code provides
that where an application is intended to determine the source of journalistic
information, there must be an overriding requirement in the public interest,
and such applications must use the procedures of the Police and Criminal
Evidence Act 1984 (“PACE”) to apply to a court for a production order to
obtain this data (see paragraph 117 above). Pursuant to Schedule 1 to
PACE, an application for a production order is made to a judge and, where
the application relates to material that consists of or includes journalistic
material, the application should be made inter partes (see paragraph 121
above). The internal authorisation process may only be used if there is
believed to be an immediate threat of loss of human life, and that person’s
life might be endangered by the delay inherent in the process of judicial
authorisation (paragraphs 3.76 and 3.78-3.84 of the ACD Code – see
paragraph 117 above).
499. Nevertheless, these provisions only apply where the purpose of the
application is to determine a source; they do not, therefore, apply in every
case where there is a request for the communications data of a journalist, or
where such collateral intrusion is likely. Furthermore, in cases concerning
access to a journalist’s communications data there are no special provisions
restricting access to the purpose of combating “serious crime”.
Consequently, the Court considers that the regime cannot be “in accordance
with the law” for the purpose of the Article 10 complaint.