14
BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
47. Finally, in respect of Article 10, the applicants argued that its
protection applied to investigatory NGOs as to journalists. Amnesty initially
alleged before the IPT that there were likely to be no adequate arrangements
for material protected by legal professional privilege, a complaint which
was subsequently “hived off” to be dealt with in the Belhadj case (see
paragraphs 92-94 below), to which Amnesty was joined as an additional
claimant. No similar argument was made in respect of NGO confidence
until 17 November 2014 (the first and second open hearings having taken
place in July and October 2014). As the IPT considered that this argument
could have been raised at any time, in its judgment it had been raised “far
too late” to be incorporated into the ambit of the proceedings.
48. With regard to the remaining Article 10 complaints, the IPT noted
that there was no separate argument over and above that arising in respect of
Article 8. Although the IPT observed that there might be a special argument
relating to the need for judicial pre-authorisation of a warrant (referring to
Sanoma Uitgevers B.V. v. the Netherlands [GC], no. 38224/03,
14 September 2010), it emphasised that the applicants’ case did not concern
targeted surveillance of journalists or non-governmental organisations. In
any case, in the context of untargeted monitoring via a section 8(4) warrant,
it was “clearly impossible” to anticipate a judicial pre-authorisation prior to
the warrant limited to what might turn out to impact upon Article 10.
Although the IPT accepted that an issue might arise in the event that, in the
course of examination of the contents, some question of journalistic
confidence arose, it observed that there were additional safeguards in the
Code of Practice in relation to treatment of such material.
49. Following the publication of the judgment, the parties were invited
to make submissions on whether, prior to the disclosures made to the IPT,
the legal regime in place in respect of the PRISM issue complied with
Articles 8 and 10 and on the proportionality and lawfulness of any alleged
interception of their communications. The IPT did not see any need for
further submissions on the proportionality of the section 8(4) regime as a
whole.
3. The IPT’s second judgment of 6 February 2015
50. In its second judgment of 6 February 2015, the IPT considered
whether, prior to its December 2014 judgment, the PRISM or Upstream
arrangements breached Article 8 and/or 10 of the Convention.
51. It agreed that it was only by reference to the 9 October disclosure as
amended that it was satisfied the current regime was “in accordance with the
law”. The IPT was of the view that without the disclosures made, there
would not have been adequate signposting, as was required under Articles 8
and 10. It therefore made a declaration that prior to the disclosures made:
“23. ... [T]he regime governing the soliciting, receiving, storing and transmitting by
UK authorities of private communications of individuals located in the UK, which