BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
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4.3. Confidential journalistic material includes material acquired or created for the
purposes of journalism and held subject to an undertaking to hold it in confidence, as
well as communications resulting in information being acquired for the purposes of
journalism and held subject to such an undertaking. See also paragraphs 4.26 and 4.28
– 4.31 for additional safeguards that should be applied in respect of confidential
journalistic material.
...
Communications involving confidential journalistic material, confidential
personal information and communications between a Member of Parliament and
another person on constituency business
4.26. Particular consideration must also be given to the interception of
communications that involve confidential journalistic material, confidential personal
information, or communications between a Member of Parliament and another person
on constituency business. Confidential journalistic material is explained at
paragraph 4.3. Confidential personal information is information held in confidence
concerning an individual (whether living or dead) who can be identified from it, and
the material in question relates to his or her physical or mental health or to spiritual
counselling. Such information can include both oral and written communications.
Such information as described above is held in confidence if it is held subject to an
express or implied undertaking to hold it in confidence, or is subject to a restriction on
disclosure or an obligation of confidentiality contained in existing legislation. For
example, confidential personal information might include consultations between a
health professional and a patient, or information from a patient’s medical records.
...
4.28. Where the intention is to acquire confidential personal information, the
reasons should be clearly documented and the specific necessity and proportionality
of doing so should be carefully considered. If the acquisition of confidential personal
information is likely but not intended, any possible mitigation steps should be
considered and, if none is available, consideration should be given to whether special
handling arrangements are required within the intercepting agency.
4.29. Material which has been identified as confidential information should be
retained only where it is necessary and proportionate to do so for one or more of the
authorised purposes set out in section 15(4). It must be securely destroyed when its
retention is no longer needed for those purposes. If such information is retained, there
must be adequate information management systems in place to ensure that continued
retention remains necessary and proportionate for the authorised statutory purposes.
4.30. Where confidential information is retained or disseminated to an outside
body, reasonable steps should be taken to mark the information as confidential. Where
there is any doubt as to the lawfulness of the proposed handling or dissemination of
confidential information, advice should be sought from a legal adviser within the
relevant intercepting agency and before any further dissemination of the material
takes place.
4.31. Any case where confidential information is retained should be notified to the
Interception of Communications Commissioner as soon as reasonably practicable, as
agreed with the Commissioner. Any material which has been retained should be made
available to the Commissioner on request.