European Court rules mass surveillance programme unlawful
The European Court of Human Rights in Strasbourg has today ruled that a mass surveillance programme carried out by GCHQ violated human rights laws.
Posted on 13 September 2018
A number of organisations including human rights groups and The Bureau of Investigative Journalism (TBIJ) brought the case against the government following revelations by whistleblower Edward Snowden in 2013 that GCHQ was undertaking extensive surveillance of internet communications.
The revelations by former CIA operative Snowden, revealed that a range of mass surveillance techniques were being used by the UK Government. These include a rolling buffer, known as TEMPORA, which stored the bulk data it intercepted, regardless of whether there was any ground for suspicion. The data transmitted on the internet was stored, to enable the UK authorities to go back and review it.
The Bureau of Investigative Journalism, represented by Leigh Day, argued that this interception and subsequent access to privileged data is unlawful as it fails to protect journalistic confidentiality as is required by the right to freedom of expression under Article 10 of the European Convention of Human Rights, and that surveillance regime breaches the right to privacy under Article 8 of the Convention.
TBIJ argued that the mass gathering of data including confidential journalistic information could jeopardise investigations as journalists can no longer operate with any sense of confidentiality either before or after publication or offer any level of anonymity to their sources.
Finding that UK surveillance programmes breached TBIJ’s rights under Article 10, the Court said that “it is of particular concern that there are no requirements … either circumscribing the intelligence services’ power to search for confidential journalistic or other material … or requiring analysts, in selecting material for examination, to give any particular consideration to whether such material is or may be involved”.
The judgment given today should ensure that the government reviews how it intercepts and accesses journalists’ communications and puts better safeguards in place to ensure that a journalist can continue to properly protect their sources.
The Court reiterated in its judgment 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. 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 Bureau’s Managing Editor Rachel Oldroyd welcomed the ECHR judgment:
“The Bureau believes the freedom of the press is a vital cornerstone of democracy and that journalists must be able to protect their sources. We are particularly concerned about the chilling effect that the threat of state surveillance has on whistleblowers who want to expose wrongdoing, and this ruling will force our government to put better safeguards in place. It is an extremely good day for journalism."
Rosa Curling of law firm Leigh Day who represented TBIJ at the court said:
“Today’s judgment should put an end to our security services and police forces using the mass surveillance of communications to, directly or indirectly, target journalists’ sources or journalistic confidential materials. In a democratic society, it is crucial journalists are able to operate with confidence that their sources can remain anonymous.”
Gavin Millar QC who also represented TBIJ said:
“The government must now rewrite the law as to how the security and intelligence service can look at and use journalists confidential communications and material. Secretive arrangements like these cannot continue. There must be an public interest which overrides the vital right to journalistic free speech before officials can scrutinise such material.”
Gavin was assisted by Conor McCarthy of Monckton Chambers, and Aidan Wills from Matrix.