Serving professional journalism since 1912

Magazine of the Chartered Institute of Journalists

Mass surveillance ‘unlawful’, Human Rights Court rules

The European Court of Human Rights has ruled that the UK Government’s mass surveillance programmes are unlawful and have damaged the freedom of the press.

This is a ground-breaking ruling. The ECHR Judges found, by five votes to two, that the UK’s mass interception regime revealed by NSA whistleblower Edward Snowden in 2013 violated the Article 8 right to privacy under the European Convention on Human Rights. 

This is because the necessary confidentiality of journalistic information and communications were not being properly protected. The bulk surveillance was “effectively indiscriminate, without basic safeguards and oversight” and it did not have sufficient legal basis under the Regulation of Investigatory Powers Act (RIPA) 2000.

The court also ruled there had been a breach of Article 10, the right to freedom of expression, due to the “potential chilling effect that any perceived interference with the confidentiality of journalists’ communications and, in particular, their sources might have on the freedom of the press.” There were insufficient safeguards in respect of confidential journalistic material.

The case was brought by a number of parties, including the Bureau of Investigative Journalism, campaign groups Big Brother Watch and English PEN, and human rights groups including Amnesty International.

Cornerstone of democracy

The Strasbourg ruling demonstrates that the British state has failed to provide constitutional protection to the freedom of the press as a vital cornerstone of democracy. British law has failed to protect journalists’ sources from exposure by state surveillance, and the bugging of electronic communications.

The court has also fully recognized that this vista of state surveillance has had a chilling effect on whistleblowers who want to expose wrongdoing.

In April this year the English High Court ruled against the government in a judicial review of new versions of the Investigatory Powers Act legislated for in 2015 and 2016. The judges said the legislation allowed the state access to people’s phone and internet data without any proper suspicion of serious criminal offending. This was judged to be a breach of European Union law and the government was given six months to reform the 2016 Investigatory Powers Act to provide the necessary safeguards.

In January 2016, the Court of Appeal Civil Division ruled that the Terrorism Act used to detain David Miranda, the Guardian’s courier for Edward Snowden, and seize data he was carrying at Heathrow Airport was “incompatible with article 10 of the Convention in relation to journalistic material in that it is not subject to adequate safeguards against its arbitrary exercise.”

These three rulings show that journalists’ rights and freedoms in the United Kingdom are being repeatedly breached and violated on a massive scale.

Declaration of media freedom

In 2012, the Institute’s AGM called on the government to urgently legislate for a declaration of media freedom. Six years later it is clear that in addition to such a declaration, the role of journalism needs much greater constitutional protection. It is not enough to say in Section 12 of the Human Rights Act that freedom of expression should be given a “particular regard” when courts decide the balancing exercise with other rights such as privacy. 

Journalism and freedom of expression, both in conduct and in publication, require something much stronger; something akin to the First Amendment to the Constitution of the United States of America, where professional journalistic freedom of expression in the public interest is accorded pragmatic and just priority.