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Journalists’ sources protected against bulk surveillance

On 25 May 2021 the Grand Chamber of the European Court of Human Rights (ECtHR) has delivered its long awaited judgment on bulk interception of personal data and mass surveillance by security and intelligence services in the case of Big Brother Watch and others v. the United Kingdom. The Grand Chamber judgment elaborates a general framework of principles regarding bulk interception and it finds that the (former) UK regime of interception of communications not only violated the privacy rights under Article 8 of the European Convention on Human Rights (ECHR) but also the journalists’ right to protect their sources, as guaranteed under Article 10 ECHR. The ECtHR reiterates that the protection of journalistic sources is one of the cornerstones of freedom of the press. It requires that before the intelligence services use selectors or search terms known to be connected to a journalist, or which would make the selection of confidential journalistic material for examination highly probable, the selectors or search terms must have been authorised by a judge or other independent and impartial decision-making body invested with the power to determine whether they were “justified by an overriding requirement in the public interest” and, in particular, whether a less intrusive measure might have sufficed to serve the overriding public interest. The ECtHR also finds that there were insufficient safeguards in place when confidential journalistic material has been intercepted unintentionally, as a “bycatch” of the bulk interception operation. For more information, see our blog on Inforrm’s Blog, The International Forum for Responsible Media Blog 9 June 2021 and the judgment of the ECtHR of 25 May 2021. See also the first critical analyses here, here and here.

Published in News