60
BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
attention to any such circumstances that might lead to an unusual degree of intrusion
or infringement of rights and freedoms, particularly regarding privacy and, where it
might be engaged, freedom of expression. Particular care must be taken by designated
persons when considering such applications, including additional consideration of
whether there might be unintended consequences of such applications and whether the
public interest is best served by the application.
3.75. Applicants must clearly note in all cases when an application is made for the
communications data of those known to be in such professions, including medical
doctors, lawyers, journalists, Members of Parliament, or ministers of religion. That
such an application has been made must be recorded (see section 6 on keeping of
records for more details), including recording the profession, and, at the next
inspection, such applications should be flagged to the Interception of Communications
Commissioner.
3.76. Issues surrounding the infringement of the right to freedom of expression may
arise where a request is made for the communications data of a journalist. There is a
strong public interest in protecting a free press and freedom of expression in a
democratic society, including the willingness of sources to provide information to
journalists anonymously. Where an application is intended to determine the source of
journalistic information, there must therefore be an overriding requirement in the
public interest, and the guidance at paragraphs 3.78–3.24 should be followed.
3.77. Where the application is for communications data of a journalist, but is not
intended to determine the source of journalistic information (for example, where the
journalist is a victim of crime or is suspected of committing a crime unrelated to their
occupation), there is nevertheless a risk of collateral intrusion into legitimate
journalistic sources. In such a case, particular care must therefore be taken to ensure
that the application considers whether the intrusion is justified, giving proper
consideration to the public interest. The necessity and proportionality assessment also
needs to consider whether alternative evidence exists, or whether there are alternative
means for obtaining the information being sought. The application should draw
attention to these matters.
Applications to determine the source of journalistic information
3.78. In the specific case of an application for communications data, which is made
in order to identify a journalist’s source, and until such time as there is specific
legislation to provide judicial authorisation for such applications, those law
enforcement agencies, including the police, National Crime Agency and Her
Majesty’s Revenue and Customs, in England and Wales with powers under the Police
and Criminal Evidence Act 1984 (PACE) must use the procedures of PACE to apply
to a court for a production order to obtain this data. Relevant law enforcement
agencies in Northern Ireland must apply for a production order under the PACE
(Northern Ireland Order) 1989. Law enforcement agencies in Scotland must use the
appropriate legislation or common law powers to ensure judicial authorisation for
communications data applications to determine journalistic sources.
3.79. Communications data that may be considered to determine journalistic
sources includes data relating to:
journalists’ communications addresses;
the communications addresses of those persons suspected to be a source;
and