September’s European Court of Human Rights ruling is a devastating indictment on the failure of the British state to protect journalists from unlawful surveillance and interference with their electronic communications by government intelligence agencies and police forces.
This is in fact the fifth significant legal defeat of the UK Government on this issue since 2016. In January 2016 the English Appeal Court ruled that the Terrorism Act did not have sufficient safeguards protecting journalists’ source rights under Article 10 freedom of expression.
In December 2016, the European Court of Justice said the indiscriminate collection of data under investigatory powers legislation was against EU law. The ECJ said this could only be justified under certain conditions and “solely for the purpose of fighting serious crime.”
In January this year the English Court of Appeal ruled that in light of the ECJ ruling Section 1 of the Data Retention and Investigatory Powers Act 2014 was inconsistent with EU law. Access to the data held for the government was not restricted solely to fighting serious crime. Furthermore, access was not subject to prior review by a court or an independent administrative authority.
In April, the English High Court ruled against the government in a judicial review of the new versions of the Investigatory Powers legislated for in 2014 and 2016.
It ruled that Part 4 of the Investigatory Powers Act 2016 is incompatible with fundamental rights in European law in that, in the area of criminal justice:
(1) access to retained data is not limited to the purpose of combating serious crime;
(2) access to retained data is not subject to prior review by a court or an independent administrative body.
The High Court judges gave the government six months to amend the legislation and put things right. The deadline is November 1, 2018.
Hacking of journalists’ phones
It is almost inevitable that since the passing of the Investigatory Powers Act 2000, any and every significant leak by public officials to journalists that reached publication in newspapers and broadcasting channels was secretly investigated with the sources being identified.
All the police and intelligence agencies had to do was obtain approval from a senior official in their own organization, and order mobile phone companies and Internet Service Providers to give them the data in terms of times, dates, and sending and receiving addresses and URLs.
This was happily achieved by state investigatory bodies without any of the frustrations they would have had if obliged to go to an independent judge and make a production order under the Police and Criminal Evidence Act 1984.
Under the PACE legislation they would have had to override the excluded status of journalistic confidential material protected in the act and subsequently strengthened by the Human Rights Act and ECHR case law. This gives a special importance to the protection of journalists’ sources to guard against the chilling effect of whistle-blowers being frightened off and silenced.
In September 2014 the UK Press Gazette spotted that the Metropolitan Police had somewhat triumphantly revealed their use under the RIPA 2000 legislation to obtain, without any court hearing, the phone records of Sun newspaper journalists in contact with unauthorized police sources in a dispute between the leading politician Stephen Mitchell and officers on security duty at the gates of 10 Downing Street.
Press Gazette’s subsequent investigation through Freedom of Information Act requests revealed large-scale use of such powers to identify largely police and public official sources suspected of leaking stories to the media over many years.
In February 2015, the then Interception of Communications Commissioner’s Office reported that in an investigation going back the previous three years they had established that detectives had been able to obtain the communications data of 82 journalists using these RIPA 2000 powers.
A separate non-attributable source disclosed to me: “Think of any significant police and civil servant leak since the Act was passed and assume that the name of the journalist’s source and much more was found out by the police being able to access data without having to go to a judge for a court hearing.”
In the three year period, there were 242 suspected sources investigated by police under 34 investigations, with 233 having their communications data taken. The IOCCO concluded that police forces generally “did not give the question of necessity, proportionality and collateral intrusion sufficient consideration.” It said that while generally Article 8 (Privacy) of the European Convention on Human Rights was considered, Article 10 (freedom of speech) was not.
The IOCCO’s report also stated that 80 per cent (484 out of 608) RIPA applications in this three year period related to Operation Elveden, the Metropolitan Police’s investigation into alleged inappropriate payments to public officials. The Office recommended that Parliament legislated so that “judicial authorisation is obtained in cases where communications data is sought to determine the source of journalistic information.”
The Institute is convinced that the IOCCO’s investigation reveals the tip of an iceberg of journalist source rights violation stretching back 18 years and perhaps even longer.
The ECHR ruling in detail
The ruling by the European Court of Human Rights reported the “deep concern” of the UK Media Lawyers’ Association that domestic law was moving away from the strong presumption that journalistic sources would be afforded special legal protection. Since the protection of journalists’ sources was one of the core components of Article 10, more robust protection was required.
The Strasbourg judges agreed with the Media Lawyers’ Association, saying: “The Court reiterates that freedom of expression constitutes one of the essential foundations of a democratic society and that the safeguards to be afforded to the press are of particular importance.”
They added: “The protection of journalistic sources is one of the cornerstones of freedom of the press. Without such protection, sources may be deterred from assisting the press in informing the public about matters of public interest. As a result the vital public-watchdog role of the press may be undermined, and the ability of the press to provide accurate and reliable information may be adversely affected.”
The judges said: “The Court has always subjected the safeguards for respect of freedom of expression in cases under Article 10 of the Convention to special scrutiny. Having regard to the importance of the protection of journalistic sources for press freedom in a democratic society, an interference cannot be compatible with Article 10 of the Convention unless it is justified by an overriding requirement in the public interest.”
The Court recognised the more drastic impact of the authorities carrying out searches at a journalist’s home and workplace with a view to uncovering his or her sources. Investigators who raid a journalist’s workplace have access to all the documentation held by the journalist.
The court decided: “… 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.”
What happens next?
As with the European Court of Justice in Luxembourg, the ECHR judges in Strasbourg decided that permitting 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. This was a violation of Article 8 in terms of journalists’ confidentiality.
The next chapter in the Snoopers’ Charter saga is how the government is going to amend the current Investigatory Powers Act. At the moment the system does not recognize that the journalist has a right to be party to any review of a police or intelligence agency request to access their data.
The Act appoints a Judicial Commissioner to adjudicate applications and journalists have no rights to be informed about the applications or access to their information. The Investigatory Powers Commissioner’s Office is now being run by High Court judge Sir Adrian Fulford and he plans to use around 15 current and recently retired High Court, Court of Appeal and Supreme Court Judges as Judicial Commissioners.
Everything will be conducted in secret with no public scrutiny at all and absolutely no due process of legal representation. Protections for sensitive categories such as “confidential journalistic material” and “sources of journalistic information” are invalidated where the “information is created or acquired for the purpose of furthering a criminal purpose.”
Criminal activity is defined as a situation where an accused “who has no previous convictions could reasonably be expected to be sentenced to imprisonment for a term of 3 years or more.” This means any public official trying to leak anything to a journalist will be furthering a criminal purpose because the maximum sentence is life imprisonment for misconduct in public office and will be 14 years for leaking info under a proposed Espionage Bill.
The Institute believes the current regime is too administrative and not judicial and transparent enough. The continuing use of misconduct in public office to criminalize public official journalist sources is just a ruse to put a fake cloak of “serious crime” over whistle-blowing to journalists by civil servants.
There is every reason to suspect that the Snoopers’ Charter has many more performances to run in the UK courts and at Strasbourg before professional journalists acting in the public interest get the legal protection they need and deserve.
Professor Tim Crook