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Section numbers from the book are used. The book should be read. Its content provides fuller explanations and context.
33.1.1 European jurisprudence
Case study: In 2020 the European Court of Human Rights (ECtHR) ruled that the Federal Supreme Court of Switzerland was wrong to uphold a prosecutor’s order which sought to compel journalist Nina Jecker to identify a confidential source who was a drug-dealer. He dealt in hashish and cannabis. She had featured him with anonymity in an article published in 2012 by Basler Zeitung about drug-dealing. In the article, Ms Jecker said she spent an hour in his flat, during which time three drug-users made purchases of drugs. The article said he had been dealing for 10 years without being stopped, and that he made an annual profit of 12,000 Swiss francs. The public prosecutor opened a criminal investigation because of the article, and ordered Ms Jecker to give evidence to it about the dealer. In the relevant Swiss statute, drug-dealing is categorised as a crime concerning which there is no right for journalists to have confidential sources. But to protect the dealer as her confidential source, Ms Jecker refused to give evidence, and appealed in the Swiss court system against the order. In 2014 the Federal Supreme Court found that she could not rely on the right to refuse to testify. It ruled that trafficking in soft drugs was an aggravated offence and that her testimony was the only way of identifying the perpetrator of the offence. The Supreme Court ruled that the public interest in prosecuting an aggravated drug offence outweighed her ‘private interest’ in protecting her source. Ms Jecker took a case to the ECtHR to challenge that decision. The ECtHR said that the Supreme Court had in its decision ‘deferred’ to the choice of the legislature as regards the inclusion of drug-dealing in the category of offences concerning which there was no right for a journalist to have a confidential source. The Supreme Court had considered whether the drug-dealing was serious, and decided that it was, based on what Ms Jecker’s article said about the commercial nature of the dealing and the profit the dealer made. But, the ECtHR said, the Supreme Court should have given more consideration to the specific circumstances of the case, rather than rely on the ‘general and abstract’ categorisation of the offence by the legislature. The ECtHR said that the Supreme Court should have attached significance to the following factors; that the dealing reported in Ms Jecker’s article was of soft drugs; the considerable public interest likely to be aroused by the article, given that it had highlighted that the man had been able to remain active as a drug-dealer for years without being uncovered; the risks to the newspaper’s reputation in the eyes of future potential sources if the prosecutor’s order was upheld; and the interest of [value to] members of the public in receiving information imparted through anonymous sources. The ECtHR pointed out that in view of the importance of the protection of journalistic sources for press freedom in a democratic society, a legal requirement for a journalist to disclose the identity of his or her source could not be compatible with Article 10 of the European Convention on Human Rights unless justified by an overriding requirement in the public interest. But the Supreme Court had decided the case with reference to the categorisation of the offence by the legislature. That judgment could not therefore lead to the conclusion that the prosecutor’s order for Ms Jecker to give evidence had satisfied an overriding requirement in the public interest. Accordingly, the ECtHR said, the Supreme Court had failed to provide sufficient justification that the issuing of the order had corresponded to a ‘pressing social need’. The ECtHR therefore concluded that this interference with the exercise of Ms Jecker’s Article 10 rights could not be regarded as necessary in a democratic society, and that there had been a violation of Article 10. The ECtHR noted that her article had been critical of the drug-dealing (Jecker v Switzerland – Case 35449/14, 6 October 2020).
33.2 Court orders to name or produce material which could identify a source
A journalist protecting a source’s identity may face a long and tortuous legal battle.
Case study: In April 2000 Ashworth High Security Hospital obtained a High Court order that the Daily Mirror should disclose within two working days how it came to be in ‘possession or control’ of medical records – whether originals, copies or extracts – of the notorious ‘Moors murderer’ Ian Brady. The hospital’s legal action against the Mirror, to discover who gave it this information, started a series of litigation which lasted for more than six years. It began because the newspaper included verbatim information from these daily records, which were kept at the hospital, in an article published in December 1999 about Brady being on hunger strike. Its headline was: ‘Death Wish Diary – Hunger strike Brady is determined to die’. He had been jailed in 1966 because he tortured and murdered five children. He was a long-term patient at Ashworth, having been transferred there from prison. Brady began the hunger strike because he was protesting at being transferred from one ward to another and the manner of the transfer. Brady himself publicised the hunger strike by writing to the BBC, including complaints that warders in riot gear had injured his wrist when removing him from the original ward, that he was now being forcibly fed an about how that was carried out. The Mirror article included reference to Brady’s weight loss and to his interactions with staff, quoted from the hospital records. The hospital, suspecting that these medical records had been disclosed by a staff member, intended to discipline – which in practice would mean dismiss – that person once he or she was identified, because of his or her breach of confidence in leaking the records. For context about the law of confidence, and a court’s power to order identification of a ‘wrongdoer’, see ch. 26 and 33.8 in McNae’s. The hospital told the High Court that the source should be identified because if its staff or patients felt there was a possibility that what was entered in patients’ psychiatric records would be published improperly, the staff’s reporting in those records would be inhibited, patients would be deterred from providing information about themselves, and there would be damage to the patient-doctor relationship, which rests on trust. The hospital also argued that the presence of a known ‘mole’ created atmosphere of distrust amongst staff which would be detrimental to efficient and co-operative work. It said too that the disclosure of the identity of the Mirror’s source was necessary to stop future leaks of information. The Mirror opposed the order being granted. Gary Jones, the Mirror’s investigations editor, who wrote the article, gave evidence that he received the information in Brady’s records via an intermediary who was paid £1,500 by the Mirror for them. Mr Jones said that he suspected the intermediary’s source was a staff member at the hospital, whose identity he did not know. Mr Jones, who was described by the High Court judge as ‘a straightforward witness’, explained that, in accordance with his normal working practice, after writing his article he had destroyed the material that he had received (see 33.9 in McNae’s on why documents from a confidential source should not be kept by the journalist). When ruling that the disclosure order should be made, the High Court judge made clear he accepted the hospital’s arguments. The order was that the Mirror must identify the intermediary and anyone employed at Ashworth who had been involved in the Mirror acquiring the information in Brady’s records (and that it must supply their addresses, telephones and fax numbers if known). The Mirror appealed to the Court of Appeal against the order. There the newspaper argued that the High Court judge had not given sufficient weight to its argument about the rights of journalists, under Article 10 of the European Convention on Human Rights, to have confidential sources of information. But in December 2000 the Court of the Appeal upheld the High Court’s disclosure order. In part of the Court of Appeal ruling, Lord Phillips, the Master of the Rolls, said it was likely that the intermediary had paid money to the source for the information in Brady’s records, and added: ‘Unless and until the source is identified and dismissed there must be a significant risk that his or her venality will lead to the sale of further confidential information’. In 2002 the House of Lords (what is now the Supreme Court) upheld the Court of Appeal’s decision, saying that, while compelling the disclosure of the identity of sources had a ‘chilling effect’ on freedom of the press, the High Court’s disclosure order was ‘necessary and proportionate and justified’ to protect the confidentiality of the hospital’s medical records (Ashworth Security Hospital v MGN Ltd [2000] EWCA Civ 334, [2002] UKHL 29; [2002] 4 All ER 193). Freelance journalist Robin Ackroyd then revealed that he was intermediary who had supplied the information from Brady’s records to the Mirror, but Mr Ackroyd refused to identify who had given him the information to him. The High Court ordered him to do so. This was a ‘summary’ (expedited) judgment, in essence based on the ground that the reasons which led the House of Lords to uphold the disclosure order made against the Mirror meant that a disclosure order should now be made against Mr Ackroyd. But in May 2003 the Court of Appeal upheld his appeal against the order and ruled there should be a full trial of the issue in the High Court, saying he had an arguable defence. The Court of the Appeal made this decision after considering a witness statement which Mr Ackroyd gave to the High Court. In it he said that whoever gave him the information from Brady’s records - Mr Ackroyd said it came from ‘sources at Ashworth’ – had not been was not paid for it. Mr Ackroyd said the sources were not motivated by monetary gain, and in giving him the information had been acting in the public interest, to ‘enable the public disclosure of the way in which Mr Brady had been treated’. Mr Ackroyd said: ‘What Mr Brady was subjected to during his move [to another ward] and at the start of his force feeding was excessive and incompetent….However evil Mr Brady is, Ashworth is responsible for his proper treatment.’ Mr Ackroyd referred to his investigative journalism published about the hospital on other matters, including a plan by Brady to escape. He said he had relied on many confidential journalistic sources to help him expose incompetence at the hospital and to subject it to public scrutiny. He referred to an official report (the Fallon report, published in 1999) which severely criticised management and clinical staff at the hospital, including because a visitor who was a young girl was allowed to associate there, sometimes unsupervised, with patients with ‘appalling’ criminal records, including a man who was a paedophile whose convictions included the attempted rape of a girl, and another man who had sexually attacked, tortured and murdered a 13-year-old boy. Mr Ackroyd said the hospital had a history of secrecy. He said his investigations had led him to be thanked by a Government Minister, and that some of the material which he had published led directly to the instigation of the Fallon Inquiry. Lord Justice May said in the Court of Appeal’s judgment, when referring to the proceedings again the Mirror: ‘One important assumption of fact in that case was wrong. The source in the hospital of the [medical] records was not paid and was not guilty of the venality which both the Court of Appeal and the House of Lords assumed.’ Lord Justice May also said it did not automatically follow that the public interest in non-disclosure of medical records should override the public interest in maintaining the confidentiality of Mr Ackroyd’s sources. Lord Justice May said that although there was little or nothing in Brady’s medical records, as disclosed to the Mirror, which appeared to give rise to legitimate criticism of the hospital, Mr Ackroyd did not have to prove an overriding public interest in his source's disclosure of the records, because in law the onus was on the hospital ‘to establish an overriding public interest, amounting to a pressing social need, to which the need to keep press sources confidential should give way’ (Mersey Care NHS Trust v Robin Ackroyd [2003] EWCA Civ 663). During the full trial, which took place at High Court in 2006, the judge, Mr Justice Tugendhat was told that the hospital had a new management structure, and that there was no evidence of any repetition of the very grave matters that occurred there prior to 1999, and which were the subject of the Fallon Report. He was also told that the hospital had in 1999 made apologies to Brady for some aspects of the way in which he was forcibly moved to a new ward, and for some ‘minor’ mistakes made in the way he was force-fed, but that other complaints Brady made about those episodes were not upheld by an independent investigation. The outcome of the trial was that Mr Justice Tugendhat rejected the hospital’s argument that the need to protect the confidentiality of its medical records overrode the public interest in protecting the identity of Mr Ackroyd’s sources. Mr Justice Tugendhat therefore refused the hospital’s application for an order to compel Mr Ackroyd to reveal who gave him the medical information about Brady. The judge said that the hospital no longer argued whoever did that was paid for the information. The judge ruled there had been ‘no financial motive, but rather a misguided attempt to act in the public interest.’ The judge noted that improvements at the hospital meant that medical records were now kept more securely, and that about a third of its staff had left since 1999, and there had been no similar unauthorised disclosure of medical records since 1999. For these reasons, he did not consider there was a ‘pressing social need’ for the hospital to be able to identify who had been Mr Ackroyd’s sources in 1999. Mr Justice Tugendhat also said he had concluded that Mr Ackroyd was a responsible journalist whose purpose was to act in the public interest (Mersey Care NHS Trust v Robin Ackroyd [2006] EWHC 107 (QB)). The hospital appealed this judgment, but the Court of Appeal ruled for Mr Ackroyd in February 2007, and so the identity of whoever supplied him with the information from Brady’s medical records remains his secret (Mersey Care NHS Trust v Robin Ackroyd [2007] EWCA Civ 101).
33.3 Be prepared for communications and records to be probed
As outlined in 33.3 in McNae’s, the Investigatory Powers Act 2016 sets out law empowering the security service (MI5), the intelligence services (MI6 and GCHQ), and the police to secretly intercept people’s communications, and to extract information from computer systems and people’s devices, secretly or otherwise. The Act also contains law empowering those services, the police and a range of other public authorities (such as local councils) to secretly access people’s communications data as held, for example, by telephone companies. Such data includes which telephone numbers were rung by the person, the numbers from incoming calls, when the calls were made or received, and their duration. For the powers to be used lawfully, the intercepting, extracting or accessing must be for a purpose specified in the Act – for example, the investigation of crime. Before the Act was created, these types of powers were provided in different statutes. The Government’s justifications for the Act include that this new and consolidated law was needed to help identify and catch terrorists and other criminals, and to protect national security.
When the Act was being created, lobbying of Parliament by groups concerned about civil liberties, including media organisations, improved to some extent its safeguards for such liberties, including privacy in communications. Journalists were concerned, in particular, to protect their rights under Article 10 of the European Convention on Human Rights to have confidential sources of information - for example, people whose identity as their sources remains unknown to police or other official agencies. These Article 10 rights enshrine ‘the public interest’ (the high value to society) in there being some protection in law for ‘whistleblowers’ – for example, those seeking through journalists to warn the public of wrongdoing or inefficiency in the work of the police or other official institutions. See 33.2 in McNae’s for context.
Concerns held by journalists about the law being proposed were aired when the Act, as a Bill, was debated in the Parliament. In the House of Lords, one peer warned that such law would permit a state agency, when it was trying to identify a journalist’s confidential source, to access a journalist’s notes, or video footage, stored on their phone, or to use the phone’s microphone as a bug. See Useful Websites, at the end of this Additional Material, for The Guardian’s coverage of such concern.
The Act contains some safeguards, outlined below, to uphold journalists’ (and sources’) Article 10 rights, as regards when police, the security and intelligence services or public authorities can use their powers to seek to identify such sources, including by gaining access to ‘confidential journalistic material’ in communications or computer systems. The law which has developed in European jurisprudence is that use of such powers for that purpose is only justified ‘if this is necessary in a democratic society because of an overriding requirement in the public interest’. Rulings of the European Court of Human Rights are that there must be a ‘pressing social need’ in the particular case to override a journalist’s right to keep the identity of a source secret. This means that for each such use of these powers to be lawful, there must be a particular circumstance, such as a need to protect national security or to prevent serious crime, which amounts to a public interest requirement stronger in law than the public interest in the journalist being able to protect the source’s identity. Also, this law says that officialdom’s use of investigative powers must be ‘proportionate’. For context about this law, including the proportionality principle, see 33.2 in McNae’s.
When stressing the existence of Article 10 safeguards in what became the Investigatory Powers Act 2016, the Government placed great weight on the roles created in this legislation for ‘Judicial Commissioners’ to approve or not approve warrants for police or the security service or intelligence services to intercept communications or to extract information from devices or computer systems, and to approve or not approve authorisations for police, those services and other public authorities to gain access to communications data.
The roles of the Commissioners are outlined below. There are 15 of them. They are current and or recently retired High Court, Court of Appeal and Supreme Court Judges. As outlined in 33.3 in McNae’s, the Act enables these approval functions to be conducted in secret, leaving little scope in law for any journalist who is subject to such authorised, official probing for the identity of a confidential source, or who fears it may have occurred, to know if it has occurred, or any detail of how the Commissioners have weighed up factors in their decisions on whether to approve such probing. But, as outlined above, a Commissioner’s role in this respect is to ensure that the ‘overriding requirement’ exists in the particular case, to justify approval, and if the decision is that it does, to ensure that any probing of the journalist’s communications, communications data and records will be ‘proportionate’.
A basic safeguard in the Act is that it has definitions of ‘journalistic material’ and ‘confidential journalistic material’ (definitions present too in earlier law). Section 264 defines ‘journalistic material’ as material created or acquired for the purposes of journalism, and ‘acquired’ means it was received by one person from another who intended that recipient to use it for the purposes of journalism. The section says material is not to be regarded as created or acquired for the purposes of journalism if it is created or acquired with the intention of furthering a criminal purpose (such as, for example, terrorism). The section says (here summarised) ‘confidential journalistic material’ in the case of material contained in a communication is journalistic material which the sender of the communication holds in confidence, or intends the recipient, or intended recipient, of the communication to hold in confidence; or in any other case, is journalistic material which a person holds in confidence.
33.3.1 Interception of communications
The Investigatory Powers Act 2016 consolidated powers available to the police, the security and intelligence services to ‘intercept’ - and so obtain what is said or written in – phone calls, texts, emails, letters and other types of communications. The Home Secretary can issue a warrant authorising such interception in the interests of national security, for the purpose of preventing or detecting serious crime, in the interests of the economic well-being of the United Kingdom so far as those interests are also relevant to the interests of national security, and at the request of other nations with which the UK has ‘mutual assistance’ agreements for such investigations.
The Act also enables the Home Secretary to authorise ‘bulk’ interceptions by the security and intelligence services of ‘overseas related’ communications, even those of people not suspected of any crime, in the interests of national security, for the purpose of preventing or detecting serious crime, and in the interests of the economic well-being of the United Kingdom so far as those interests are also relevant to the interests of national security. This means that the content of thousands of such communications can be swept up by GCHQ to be examined and analysed.
Sections 28 and 29 of the Act specify that when the police or one of these services wants the Home Secretary to approve interception and/or examination of communications which the police or service believes will contain confidential journalistic material, or when the purpose or one of the purposes of the interception or examination is to identify or confirm a source of journalistic information, the application for such a warrant must (to make the Home Secretary aware of this sensitivity) include a statement making clear this context or purpose, for the application.
The sections also require specific, safeguarding arrangements to be in place for the handling, retention, use and destruction (when no longer needed for the investigation) of communications containing such material or which identify sources of journalistic material.
Under the Act, all interception and examination warrants must also be approved by a Judicial Commissioner, unless the Home Secretary or his/her deputy issued the warrant in urgent circumstances, in which case a Commissioner has to review that decision later.
Section 154 of the Act says that if a communication which has been intercepted in accordance with a bulk interception warrant is retained, following its examination, for purposes other than the destruction of the communication, and it is a communication containing confidential journalistic material, the person granted the warrant must inform the Investigatory Powers Commissioner as soon as is reasonably practicable. See Useful Websites, at the end of this Additional Material, for more information about this Commissioner and the Judicial Commissioners.
33.3.2 Probing of communications data
The 2016 Act also enables the police, the security and intelligence services, and a range of other public authorities to have targeted access to communications data – for example, by requiring telephone and internet service companies to provide it. Such data is not the content of a communication but information revealing who initiated/sent it, who the other party/recipient is, when and where it was made/sent, etc – for context, see 33.3.2 in McNae’s. Such access – for example, to data of phone calls or of email traffic - can be authorised by a designated official in that authority for the purpose(s) the Act permits for that authority.
For example, the security and intelligence services can legally access the data in the interests of national security and in the interests of the economic well-being of the United Kingdom so far as those interests are also relevant to the interests of national security. The widest use of these powers is reserved for police forces for the investigation of crime. These services and the police are by far the biggest users of these access powers.
As specified in the Act, other types of public authority can only legally access communications data if the access is relevant to their function. For example, local ambulance trusts, and fire and rescue authorities can access it only for the purpose of preventing death or injury or any damage to a person’s physical or mental health, or of mitigating any injury or damage to a person’s physical or mental health. Other purposes specified by the Act, according to each authority’s function, as justifying access include when this is in the interests of public safety, or to protect public health, or to assist official investigations into alleged miscarriages of justice, or to assess or collect any tax, or to exercise functions relating to the regulation of financial services and markets. There are particular, restrictive procedures in the Act for local authority councils who want to access communications data. But many of the authorities listed in the Act can legally acquire such data for the purpose of preventing or detecting crime. And those that do not have this power can ask the police to investigate an alleged crime, which may be done by police accessing such data. So the law gives wide scope for public authorities to seek to justify accessing communications data to try to identify a journalist’s confidential source in circumstances when a leak of information to the journalist by the source is alleged to be a criminal act. For example, the public authority may claim it is investigating the leak because the leaking is ‘misconduct in public office’, or breach of data protection law, or that identification of such a source is necessary to investigate other crime.
33.3.3 Reduced protection for journalists’ communication data
The ease and secrecy with which police could use earlier legislation (the Regulation of Investigatory Powers Act 200) to obtain journalists’ communications data made a mockery of their Article 10 rights to protect confidential sources. Controversy about this led to the Press Gazette’s campaign ‘Save Our Sources’ and other protests.
Case study: In 2017 the Investigatory Powers Tribunal ruled that use of the Regulation of Investigatory Powers Act 2000 (RIPA) in 2012 by Cleveland police to access the communications data of two of its officers (who later became the complainants to the Tribunal), a solicitor, and three Northern Echo journalists was unlawful and excessive. The Tribunal is a type of court with a duty to consider complaints about accessing of communications data. Cleveland police were investigating leaks of information to the media about an officer’s grievance case, about a report about racism within the force, and about a murder inquiry. The access to this communications data was authorised by a senior police officer, under RIPA. Cleveland police said the investigation concerned whether the leaks were offences of misconduct in public office or breach of data protection law. Among the Tribunal’s findings were that the journalists’ Article 10 rights were not considered before the authorisations were given, and there was insufficient consideration of whether the use of RIPA was proportionate (Case reference [2017] UKIPTrib15_586-CH).
In 2015 the Interception of Communications Commissioner’s Office published a report which disclosed that in the three years to early October 2014, 19 police forces had accessed communications data in a total of 34 investigations into what officialdom deemed to be suspected illicit relationships between 233 public officials (sources) and 82 national, regional and local journalists. Some of these police authorisations to access journalists’ communications data were triggered by media publication of material leaked or suspected to have been leaked, or by journalists indicating to police press offices that they had such material. The report did not identify the journalists or sources. The Office said there was no random trawling of communications data but that in general the senior police officers who gave authorisations did not give due consideration to journalists’ Article 10 rights or sufficiently consider ‘the question of necessity, proportionality and collateral intrusion’.
In 2015 the Government, responding to journalists’ concerns, amended the RIPA regime, by introducing a requirement for police to get a court’s approval before accessing journalists’ communications data (though journalists were not given a right to be told of the court hearing). The law in RIPA about targeted access by public authorities to communications data was replaced by parts of the Investigatory Powers Act 2016, referred to above, introducing the role of Judicial Commissioners.
33.4 Codes of Practice for interception, extraction and access to communications data
Under the 2016 Act’s schedule 7 the Home Secretary is obliged to issue codes of practice for relevant officials to consider when deciding whether to seek warrants or authorisations, or make authorisations, based on powers in the Act; and for the Judicial Commissioners, the Investigatory Powers Commissioner, the Investigatory Powers Tribunal and any other court or tribunal to use when making or scrutinising decisions under the Act. Such decisions by a Judicial Commissioner could be, for example, whether to approve interception of communications or access to communications data to help the police or the security service identify a journalist’s confidential source. The Investigatory Powers Commissioner has power to retrospectively review such decisions, to check they complied with the law. Under schedule 7, each code must include provision to protect the public interest in the confidentiality of sources of journalistic information. Again, for context about the Investigatory Powers Commissioner and the Investigatory Powers Tribunal, see 33.3 in McNae’s and Useful Websites, at the end of this Additional Material.
The codes – relating to interception of communications, equipment interference, bulk acquisition of communications data, access to communications data, and the security and intelligence services’ retention and use of bulk personal datasets - can be read online. See Useful Websites. These codes say: ‘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.’ They include emphasis on the need to comply with the proportionality principle – see 33.2.1 in McNae’s.
The codes also say: ‘An assessment of whether someone is a journalist (for the purposes of the Act) should be made on all the facts and circumstances available at the time. Consideration should be given, in particular, to the frequency of the individual’s relevant activities, the level of personal rigour they seek to apply to their work, the type of information that they collect, the means by which they disseminate that information and whether they receive remuneration for their work. This approach will take into account the purpose of the provisions contained within the Act which is to protect the proper exercise of free speech, and reflect the role that journalists play in protecting the public interest.’
Three of the codes (those on interception, equipment interference, and the intelligence services’ retention and use of bulk personal datasets) say too: ‘The fact that a person uses social media tools to communicate does not, in itself, indicate that that person is a journalist or that he or she is likely to be holding confidential journalistic material ...’
Other parts of these three codes say:
‘Confidentiality can continue to attach to confidential journalistic material when it is sent to or held by a person who is neither the journalist nor the source (for example, a news editor who has been sent some notes by a journalist).’
All the codes say: ‘A source of journalistic information is an individual who provides material intending the recipient to use it for the purpose of journalism or knowing that it is likely to be so used.
The code governing how official agencies acquire (access) communications data says that the only circumstances when a ‘urgent authorisation’ is justified in the case of a journalist’s data – when the purpose is to identify or confirm the identity or the role of an individual as a journalist’s source – is when there is ‘an immediate threat’ to someone’s life which the data is needed to avert.
In such an urgent situation, the 2016 Act permits the access (for example, to be achieved by police serving a legal notice on a telephone company to supply the data of who rang who and when) to be authorised solely by the designated senior official in that agency, such as a senior police officer, and does not require the advance approval of a Judicial Commissioner, though the code says that the Investigatory Powers Commissioner’s Office must be informed of the authorisation as soon as practicable (so a check can be made that the authorisation was legally justified).
Examples given in the code of such an immediate threat to life are:
- a warning of an imminent terrorist incident being telephoned to a journalist or newspaper office;
- a journalist conducting an investigation which includes a significant element of personal danger who has not checked in with her or his office at the agreed time
- a source contacting a journalist to reveal their intention to commit suicide.
33.5 If the application is ‘not to identify or confirm the role of an individual as a source of journalistic information’.
The code goes on to say: ‘The requirement for Judicial Commissioner approval does not apply where applications are made for the communications data of those known or suspected to be journalists or sources but where the application is not to identify or confirm the role of an individual as a source of journalistic information.
‘However, the application may still be sensitive and all those involved in it should proceed with care.’
The code, by ‘application’, is here referring to a request made within an official agency for the designated senior officer to use legal powers to enable the agency’s investigators to access a journalist’s communication data.
The code adds: ‘As this is a sensitive and often complex issue and the protection of Article 10 rights is crucial, it is important that authorising officers proceed with caution and seek additional advice if there is any doubt as to whether Judicial Commissioner approval is required.’
The code gives the following examples of when an application, which relates to a journalist or their source, may be considered not to be for the purpose of identifying or confirming the role of the individual as a journalist’s source, and therefore of when a Judicial Commissioner approval’s may not be required for that agency to gain access to the journalist’s communications data:
- when the journalist is a victim of crime and it is clear that their profession and sources are not relevant to the investigation of that crime;
- when an identified source or suspected source is a victim of crime and it is clear that their role as a source is not relevant to the investigation of that crime;
- when a journalist, identified source, or suspected source is a witness or other by-stander in an investigation not related to their roles as journalist or source and a communications data application is made to discount them from the investigation.
- when the journalist, identified source, or suspected source is suspected of committing a crime - for instance, where a journalist is suspected of committing a crime and it is clear that their profession and sources are not relevant to the investigation of that suspected crime.
The code adds that Judicial Commissioner approval may not be required to acquire the communications data of a known criminal under investigation who is also a [journalist’s] source. ‘Where a journalist-source relationship is already confirmed and the individual’s role as a source is not relevant to the investigation, Judicial Commissioner approval may not be required.’
33.6 Information stored in networks or equipment
The 2016 Act enables the Home Secretary to approve warrants for the security and intelligence services to conduct ‘equipment interference’ to get information stored in devices or systems, including computer networks, and to examine such information. Heads of law enforcement agencies, such as a chief constable, can issue such warrants for their officers. For applications for this type of warrant, the Act’s sections 113 and 114 created the same type of safeguards for journalists and their sources as apply to the applications for interception warrants, see above. These include that if a purpose of the warrant is to obtain or examine communications or other items of information which the applicant for the warrant believes contains confidential journalistic material, or to identify or confirm a source of journalistic information, the application must specify this purpose in writing. A warrant must be approved too by a Judicial Commissioner, unless the need for it is urgent.
33.7 Monitoring of internet use
Journalists concerned about the potential for state surveillance and monitoring of their activity should note too that the 2016 Act requires internet companies to keep for 12 months data showing what websites people have visited, so it can, for example, be analysed in police investigations.
33.8 Be prepared to be watched or bugged
A journalist may be put under covert surveillance by an official agency wanting to know who his or her sources are – see too 33.4 in McNae’s.
The Regulation of Investigatory Powers Act 2000 (RIPA) sets out how covert surveillance by official agencies – for example, police watching or ‘bugging’ suspected criminals - can be authorised.
It could, for example, be deemed lawful for police to watch or bug a journalist to discover who is leaking information to him or her from an official institution, if that leaking is regarded as a crime. But, again, the Article 10 rights of the journalist (and source) mean there would have to be an ‘overriding requirement in the public interest’ to justify the surveillance – for example, the suspected crime would need to be sufficiently grave for such surveillance to be lawful. And the principle of proportionality means, for example, that other steps to discover the source’s identity should have been tried first.
The Act defines surveillance as ‘directed’ or ‘intrusive’. ‘Intrusive surveillance’, for the purposes of the Act, is covert and involves use of a surveillance device (for example, a microphone or camera), or the presence of a person doing the surveillance, in residential premises or a private vehicle. Any other method of surveillance is described as ‘directed’, no matter how intrusive it is.
Under RIPA, authorisation for intrusive surveillance, which must be given by a ‘designated’ person (for example, a chief constable), must normally be approved too by a Judicial Commissioner unless the need for the surveillance is urgent, Some surveillance, including entry into and interference with property, can in some circumstances be authorised by the Home Secretary with warrants issued under the Intelligence Services Act 1994 or the Police Act 1997.
Schedule 1 in RIPA gives a lengthy list of public authorities whose ‘designated’ representative can authorise directed (but not intrusive) surveillance. For example, councils can undertake such surveillance to try to catch those illegally dumping dangerous waste or on people suspected of fraudulently claiming benefits, if a magistrate approves the surveillance.
For the codes of practice for those authorising surveillance, see Useful Websites, at the end of this Additional Material. The codes set out the safeguards in law for the protection of journalists’ confidential material and the identities of their confidential sources. For example, the application for approval to conduct surveillance should state that the purpose is to discover the identity of such a source, to ensure that whoever is due to approve it is aware of this sensitivity. The definition of a journalist in these codes is the same as in the codes for those authorising interception, extraction, etc – see above.
The remit of the Investigatory Powers Commissioner includes oversight of the use of surveillance powers. For example, the Commissioner, in the event of discovering or being notified of any ‘serious error relating to a person who has been subject to an investigatory power’, has a duty to inform the person about the ‘error’, if doing that is ‘in the public interest’ and in those circumstances the Commissioner can also tell the person of their right to report the matter to the Investigatory Powers Tribunal.
The Tribunal can award compensation and make an order quashing or cancelling any warrant or authorisation; and can require the destruction of any records of information obtained thereby or held by any public authority in relation to any person. But that may be poor recompense for a journalist’s source whose identity as such is no longer confidential, and whose life is changed as a result.
33.9 Article 8 rights to privacy and private life
Case study: The European Court of Human Rights (ECtHR) ruled in 2013 that a warrant for a police search of a Luxembourg newspaper's premises, issued by a judge, had infringed the newspaper company’s rights in Articles 8 and 10 of the European Convention on Human Rights. Article 8 says: ‘Everyone has the right to respect for his private and family life, his home and his correspondence.’ Article 10 protects the right to freedom of expression, including the rights to impart and receive information, and so is relevant to the protection of the identities of journalists’ confidential sources. The case in which the ECtHR made this ruling was Saint Paul Luxembourg SA v Luxembourg (Case No 26419/10, 18 April 2013, dealt with by the fifth section of the ECtHR). It arose after Contacto Semanário, a Portuguese language newspaper published by the Saint Paul Luxembourg SA company, ran in December 2008 an article about families losing custody of their children, naming some of the people concerned. The journalist who wrote the article did so under the name Domingos Martins - a name which did not appear on the official list of Luxembourg journalists. In January 2009 the prosecuting authorities opened a judicial investigation concerning the article, for an alleged breach of the legislation on the protection of minors and for defamation. In March 2009 the investigating judge issued a ‘search and seizure’ warrant in respect of the newspaper’s premises. In its ruling, the ECtHR said that the purpose of the warrant was for the police to discover who wrote the article and ‘to elucidate the circumstances of a possible offence’. and to protect the rights of others, as the article ‘had implicated named individuals and reported on a relatively serious matter’. The warrant was executed by police going to the premises, and there the journalist who wrote the article gave them a notebook and various documents used in preparing the article, and police accessed his computer and extracted information from it. The newspaper company subsequently applied, unsuccessfully, to a court in Luxembourg for an order cancelling the search and seizure warrant. It later applied to the ECtHR for a ruling on whether the warrant was legal. The company (‘the applicant’) argued that the search of the newspaper’s premises was a violation of Articles 8 and 10 of the Convention. In its judgment, the ECtHR rejected the notion that Article 8 only protected the ‘homes’ of individuals. The term ‘home’, it said, ‘should be interpreted as also including the official office of a company run by an individual, and the official office of a legal person, including subsidiaries and other business premises’. The fact that journalists and staff co-operated with the police in the search at Contacto Semanário’s premises did not deprive the search of its intrusive nature, because if there had been no cooperation the police would have executed the warrant in any event, the ECtHR said. It ruled that the search and seizure was an interference with the applicant's Article 8 rights. It said the exceptions in Article 8 had to be interpreted narrowly, and the necessity for them in a given case had to be convincingly established. The ECtHR said: ‘The journalist had written the article under the name “Domingos Martins”. The list of officially recognised journalists in Luxembourg did not include that name, but it did include the name “De Araujo Martins Domingos Alberto”, a journalist working for the newspaper Contacto. The similarity between the names, the unusual combination of elements they contained and the link to the newspaper in question made the connection between the author of the article and the person on the list obvious. On the basis of that information, the investigating judge could initially have employed a less intrusive measure than a search in order to confirm the identity of the person who had written the article. The search and seizure operation had therefore not been necessary at that stage. Accordingly, the measures complained of had not been reasonably proportionate to the legitimate aims pursued.’ The ECtHR said, as regards Article 10, that the wording of the warrant did not exclude the possibility that it would be used to obtain information about the journalist's sources. As a result, the ECtHR said, the warrant was disproportionate and so there was a breach of Article 10 rights. ‘As the warrant had been worded in broad terms, the possibility that it was aimed at uncovering the journalist’s sources could not be ruled out. Furthermore, the police officers, who had conducted the search on their own in the absence of any safeguards, had been responsible for deciding which items it was necessary to seize. They had been able to access information which the journalist had not intended to publish and which could have enabled other sources to be identified. The extraction of the data from the computer using a USB key had allowed the authorities to gather information which was unrelated to the offence being prosecuted. The warrant had not been sufficiently limited in scope to avoid possible abuse. Since, according to the [Luxembourg] Government, the sole purpose of the search had been to discover the real identity of the journalist who had written the article, a more restrictive form of wording, referring solely to that purpose, would have sufficed’. Because the wording of the warrant had not been suitably restricted, the search and seizure operation was ‘disproportionate to the aim sought to be achieved’, the ECtHR said.
- McNae’s authors are grateful to Hugh Tomlinson QC and the Inforrm blog for their permission to use, in the text above about the Saint Paul Luxembourg SA case, an edited version of an article about it which first appeared in Inforrm on 17 May 2013. The text also includes some of the ECtHR’s English language summary of its ruling.
33.10 The Police and Criminal Evidence Act 1984 (PACE)
The Supreme Court ruled in March 2014 that a court must allow the relevant media organisation access to all the police evidence when the court is dealing with a police application for a production order for journalistic material (R (on the application of British Sky Broadcasting Ltd) v The Commissioner of Police of the Metropolis [2014] UKSC 17).
33.11 Search warrants under PACE
The Serious Organised Crime and Police Act 2005 allows police, subject to the PACE procedure for search warrants for journalistic material, to obtain a warrant to search all property occupied or controlled by the person named in the warrant and not merely specific premises.
But before issuing an all-premises warrant a judge must be satisfied that:
(1) there are reasonable grounds for believing that it is necessary to search premises occupied or controlled by the person in question which are not specified in the application, as well as those which are, in order to find the material in question; and
(2) it is not reasonably practicable to specify all the premises which he/she occupies or controls which might need to be searched.
33.12 Other statutes
In addition to PACE, official secrets law (see McNae’s ch.32) and counter terrorism law could affect journalists by placing them under a legal obligation to disclosure information including a source’s identity. For counter-terrorism law, see 33.6.2.2 in McNae’s and the online chapter 40.
Other laws could place a journalist under such legal obligation - for example, during an official investigation into fraud or ‘insider’ share dealings. These laws include:
- section 2 of the Criminal Justice Act 1987, which empowers the director of the Serious Fraud Office (SFO) to summon anyone believed to have information relevant to an investigation. Anyone who fails to answer questions or give information faces a fine unlimited by statute and/or up to six months in jail. There is no public interest defence for refusing to co-operate.
- The Financial Services and Markets Act 2000, as amended, which gives powers to financial regulators to demand information and documents.
- The Crime (Overseas Production Orders) Act 2019, which creates a framework under which the Government can reach agreements with foreign states that the courts in those countries will execute production orders issued by UK judges. The order would seek the ‘production’ (surrender) of electronic data held abroad which is considered material to an investigation by a law enforcement agency in the UK into crime. Section 12 of the Act requires that normally when such a production order is applied for in relation to any journalistic material held electronically – not just confidential journalistic material – the journalist or media organisation concerned must be notified of the application (so that arguments against the making of such an order can be made). Exceptions include that notification is not required if it would prejudice the investigation of an indictable offence or a terrorist investigation.
33.13 Maintaining a reputation for neutrality
33.13.1 Photos and footage of disorder
As explained in 33.12 in McNae’s, journalists and media organisations, to maintain a reputation for neutrality, may decide not to surrender voluntarily material which police request.
For example, untransmitted footage of the riots in London in August 2011 was handed to the police by BBC, ITN and Sky News only after police obtained production orders under the Police and Criminal Evidence Act 1984 (PACE). These PACE powers are outlined in 33.6 of McNae’s. A judge might reject the application for a production order if he/she does not consider it in the public interest to grant it, or for another reason.
Media organisations have repeatedly argued that it is not in the public interest for the police to gain - through production orders – access to unpublished footage and unpublished photos of rioting or other types of disorder or protests. Media organisations cite their rights under Article 10 of the European Convention on Human Rights to gather news without interference by a state agency, such as the police. For example, in the case of the footage shot at Dale Farm – see the case study, below – media organisations argued that production orders are capable of discouraging or preventing journalists responsible for visual news coverage from carrying out such work. The argument is that if the perception takes hold among the public that journalists shooting footage and taking photos are working on behalf of the police, or are likely to co-operate with the police by supplying such material routinely to them, life could become very difficult for journalists on the ground. For example, it was argued that they might find it more difficult to obtain access to areas where demonstrations are taking place, or to work in the vicinity of those who are prone to violence. Also, the media’s argument includes that such a perception could increase the risk of violence towards camera operators, photographers or their equipment. In nearly every such case, judges have ruled that the police’s need – in the public interest - for evidence of rioting or other disorder outweighed the media’s Article 10 rights, though the case described below was an exception.
Case study: In 2012 the High Court overturned a production order made by a judge at Chelmsford Crown court for broadcasters to hand over more than 100 hours of footage of evictions from the Dale Farm travellers’ site. The High Court said there were no reasonable grounds to believe that the footage included material likely to be of substantial value to the police investigation. The court added that applicants for such an order had to produce ‘clear and compelling’ evidence that it was necessary. In the judgment, Lord Justice Moses said that a judge facing such an application by the police for media footage also had to exercise discretion in a manner compatible with Article 10, even if the conditions in PACE for the police to have the material were satisfied. Lord Justice Moses added: ‘First, the objective must be sufficiently important to justify the inhibition such orders inflict on the exercise of the fundamental right to disseminate information. Second, the means chosen to limit the right must be rational, fair and not arbitrary, and third, the means used must impair the right as little as is reasonably possible’ (R (on the application of BSkyB, the BBC, ITN, Hardcash productions Ltd and Jason Parkinson) v Chelmsford Crown Court [2012] EWHC 1295 (Admin); [2012] 2 Cr App R 33; [2012] EMLR 30).
33.13.2 Neutrality: opposing police seizure of unpublished interview material
Case study: In 2019 the Metropolitan police asked a judge at the Old Bailey for production orders to require The Times, ITN, Sky and the BBC to surrender unpublished material from interviews conducted in Syria with ‘ISIS bride’ Shamima Begum. The media organisations had refused to hand over the material voluntarily to the police. It was interview notes and footage not broadcast. In 2015 when she was 15, Ms Begum had travelled with two other London schoolgirls to the ISIS ‘caliphate’ in Syria – an episode which attracted great publicity. But then her whereabouts became unknown. In February 2019 Times reporter Anthony Loyd discovered - after ISIS strongholds fell to Western-backed forces - that she was in a refugee camp in Syria. He interviewed her there and The Times published this exclusive. This led to TV reporters interviewing her in Syria, for reports which were broadcast. She had married a Dutch man, who fought for ISIS, soon after arriving in Syria. She had two children who died (and her third baby died too, in the refugee camp). Later in 2019 the police applied under schedule 5 of the Terrorism Act 2000 to the court for production orders to require the four media organisations to surrender the notes and unpublished footage. The police were investigating whether Ms Begum had joined ISIS, which would be a crime because it is a ‘proscribed’ group because of its terrorism. The police wanted to know if she had said anything else to the journalists about her time in ISIS territory, beyond what was published (for context about schedule 5 of the 2000 Act, see 33.6.2.2 in McNae’s and 40.8 in the online ch. 40 on this website, and that online chapter also explains law on ‘proscribed’ groups). Under schedule 5, the police had to prove to the court that they had reasonable grounds to believe that the unpublished material concerning Ms Begum would be of ‘substantial value’ to their investigation. For the media organisations, it was argued that there were not reasonable grounds for the police to believe that the unpublished material contained admissions from Ms Begun that she had taken part in ISIS activity, because it was not realistic for the police to suppose that the reporters would have chosen not to publish any such admission. It was also argued for the media organisations that they were aware they had a duty under the 2000 Act to inform the police of what she said, if that information could help prevent commission of terrorism, and there was no reason to conclude that they would have ignored or overlooked that duty as regards the notes and unpublished footage (NB: for this duty, see the online ch. 40). Therefore, it was argued on the media organisations’ behalf, the police could not prove there were reasonable grounds to believe that the value to their investigation of the unpublished material from the Begun interviews was over and above the value of the material published from them, which had already been offered to the police. It was also argued for the Times, ITN, Sky and the BBC that if they were routinely required to surrender unpublished material to law enforcement agencies, this would undermine the ability of their journalists, and other journalists, to gain stories of high public interest value, because it would undermine the neutrality of journalists or the perception of such neutrality, which would mean that sources of information would not co-operate with them. It was argued in particular that loss of perceived neutrality would endanger journalists reporting from conflict zones, in that organisations such as ISIS are hostile to journalists and will readily accuse them of being spies for law enforcement agencies. Gavin Millar QC, barrister for the media organisations, told Judge Mark Dennis: ‘Journalists are believed to be neutral observers, and it is the neutrality of the press which affords them protection’. During the court hearing, the police chose not to pursue the attempt to gain access to Sky’s unpublished material after accepting it was superfluous and only of a few seconds duration. Judge Dennis ruled that the police did have reasonable grounds, in the case of the unpublished material held by the Times, ITN and the BBC, to believe it would be of substantial value to the investigation into Ms Begum, because there was a significant amount of it and because of what she had said in some of the published material (including that she had been ‘in ISIS’). But he refused to make production orders against them, saying that if the sought-after material was kept safely, there was no pressing social need to interfere with their Article 10 rights by forcing them to surrender it (for context on Article 10, see 33.2 in McNae’s – the ‘pressing social need’ criterion is from case law about when Article 10 rights can be outweighed). Judge Dennis said there was no real prospect of police arresting Ms Begum at that time - she remained in Syria and earlier in 2019 her UK citizenship had been removed - and he indicated that this was why no ‘pressing social need’ existed for the police to have the unpublished material to help them to question her. The media organisations undertook to lodge it with a firm of solicitors to safeguard it, because if Ms Begum ever re-enters the UK, the police might want to make fresh applications for it to be surrendered. Judge Dennis said: ‘There is no doubt that the initial Times newspaper report was a commendable piece of investigative journalism and represents a significant public interest story which has opened up an important issue for public debate. Such journalistic investigation is to be encouraged. However, the work of investigative journalists in particular does rely upon trust, confidentiality, protection of journalistic material and sources, their perceived neutrality, and the co-operation of people who are prepared to place their trust in journalists.’ After the ruling, John Battle, head of compliance at ITN, said: ‘It’s a victory for journalism that the judge did not make the order. Judge Dennis clearly recognised that the journalism was of the highest public interest obtained in difficult and dangerous circumstances. The judge also accepted that journalism relies on the journalist being neutral, independent and sources being respected and this is an important precedent’ (Metropolitan police service v Times Newspapers Ltd, ITN Ltd, Sky UK Ltd and BBC, 4 September 2019 – for this judgment, see Useful Websites, below; The Times, 13 February 2019, 4 September 2019 and 7 February 2020; The Guardian and Press Association, 4 September 2019).
Remember your rights
The Data Protection Act 2018 does not require journalists to disclose in response to ‘subject access requests’ any information which would or could reveal the identity of a confidential source. For context, see 28.2.5 in McNae’s.
Useful Websites
Coverage in The Guardian of House of Lords debate on the Investigatory Powers Act 2016 when it was a Bill
Website of Investigatory Powers Commissioner’s Office which includes information about the Judicial Commissioners
www.gov.uk/government/publications/investigatory-powers-act-2016-codes-of-practice
Investigatory Powers Act codes of practice
Covert Surveillance and Property Interference Code of Practice
Covert Human Intelligence Sources Code of Practice
Metropolitan Police Service v Times Newspapers Ltd, ITN Ltd, Sky UK Ltd and BBC