Safeguards under the Investigatory Powers Act for journalistic material gathered in bulk by UK intelligence agencies will be re-examined at the High Court as a result of legal action brought by human rights group Liberty.
The Court of Appeal said one part of the Investigatory Powers Act 2016 – dubbed the Snoopers’ Charter by critics – should be reconsidered after Liberty appealed a 2019 High Court judgment that dismissed its challenge to the Government’s mass surveillance powers. The National Union of Journalists supported the action as a third-party intervenor.
Three appeal court judges said the High Court should decide whether the act provides “adequate safeguards for the protection of a journalist’s sources or confidential journalistic material in relation to communications obtained by means of a bulk equipment interference warrant”.
Liberty’s legal action also succeeded in arguing that the act’s regime for sharing bulk personal datasets with other states was unlawful under the European Convention on Human Rights, which the UK still follows despite Brexit.
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However the Court of Appeal judgment was deemed “disappointing” overall by the NUJ and Liberty, which began the legal action because it believes the act breaches citizens’ human rights to privacy and freedom of expression in multiple ways.
‘Snoopers’ Charter’ risks to journalists’ sources remain
The organisations claimed that the Investigatory Powers Act failed to have sufficient safeguards for the protection of journalistic material, including in relation to the use of search terms known to be connected to a journalist or news organisation or which would make the selection of confidential journalistic material likely.
They also said there was no provision for an overriding requirement in the public interest for the examination of such material.
But the appeal judges found that safeguards for confidential journalistic material in the act’s sections on bulk interception and bulk acquisition warrants, on authorisations for obtaining and retaining communications data, and on equipment interference were all “sufficient”.
A summary of the court judgment said: “The Court concluded that, save in one respect, the provisions contained in the 2016 Act do provide adequate safeguards against the risk of abuse and protect confidential journalistic material and journalistic sources.
“The Court held that there are adequate safeguards providing for the sharing of information with authorities overseas but, in respect of one category of material (that is data obtained from bulk personal datasets) those safeguards are not in accordance with law, and so not compatible with Article 8 [privacy] of the Convention, because the safeguards governing such transfers are not contained in any legislation, code or publicly available policy or other document.”
NUJ and Liberty react to Snoopers’ Charter ruling
NUJ general secretary Michelle Stanistreet said: “This is an important case and we welcome further examination by the courts on the adequacy of journalists’ safeguards in the context of bulk hacking.
“We are, however, disappointed with other aspects of the court’s ruling. The Investigatory Powers Act poses huge dangers for journalistic communications and the right of journalists to protect sources, which undermines their and the public’s access to stories in the public interest.”
Grace Benton, a solicitor at Bindmans LLP who represented the NUJ, added that the judgment “does not adequately grapple with the scope of the powers granted to the government under the act. As a result, there remain threats to journalistic communications and the right of journalists to protect their sources.”
Megan Goulding, a lawyer for Liberty, said: “The Snoopers’ Charter strips away our fundamental rights and allows the Government to spy on the public en masse – including gaining access to confidential communications between lawyers and clients, and journalists and sources.
“We are disappointed with the court’s ruling today. As we have shown over the course of this legal challenge, the Snoopers’ Charter is an invasive piece of legislation which infringes our rights.
“Mass surveillance does not make us safer. It fundamentally threatens and undermines our democracy and gifts extraordinary power to the state at our expense.
“We urge the Government to ensure that any state surveillance is targeted, proportionate and does not interfere with our rights.”
Liberty is now assessing whether it will continue to pursue the case with further action.
The Investigatory Powers Act 2016 replaced the Regulation of Investigatory Powers Act 2000 (RIPA), under which police accessed journalists’ call records in order to identify confidential sources and which was found to have been unlawful.
Changes in the Investigatory Powers Act did not go as far as groups such as Press Gazette, the NUJ and the News Media Association had wanted, with powers to secretly grab journalists’ phone records remaining intact.
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