UK Government admits pre-2016 journalist surveillance was illegal

The UK Government has admitted that its pre-2016 surveillance regime under which police accessed journalists call records in order to identify confidential sources violated human rights laws.

Press Gazette revealed in 2015 that police had widely used the Regulation of Investigatory Powers Act 2000 (RIPA) to secretly view journalists’ call records and identify lawful confidential sources.

We subsequently launched the Save Our Sources campaign, successfully calling for action to ensure police could no longer view journalists’ phone records without the approval of a judge, which was shortlisted for a Paul Foot Award.

RIPA was replaced in 2016 by the Investigatory Powers Bill, which was dubbed the Snoopers’ Charter and was itself ruled unlawful in part.

According to two European Court of Human Rights decisions published on Thursday, the UK Government has now acknowledged that section 8 of RIPA was “not compliant” with Article 8 (privacy) or, in relation to treatment of confidential journalistic material, Article 10 (freedom of expression) of the European Convention on Human Rights.

The admission came following a “friendly settlement” in two cases, brought by Bureau of Investigative Journalism global editor James Ball and NGO Human Rights Watch.

As part of the settlement Ball and the NGO agreed not to bring any further related claims and the Government will pay them £1,000 each in costs.

Privacy International lawyer and legal officer Nour Haidar, who worked on the cases, told Press Gazette: “The government has previously been reluctant to admit that its surveillance regime violated human rights standards, so this is an important step towards transparency and strengthening safeguards around how intelligence agencies handle intercepted communications. This is especially important to strengthen protections for confidential journalistic material.

“While we welcome the settlement, we recognise that that fight is not over: the UK’s investigatory powers regime must also include safeguards for lawyers’ communications – in particular, legally privileged communications – as well as NGOs’ and human rights defenders’ confidential communications.”

The claims were first filed in 2016 but the European Court of Human Rights waited to examine them until it reached a conclusion in a similar case brought by several organisations including the Bureau of Investigative Journalism, Privacy International and another privacy campaign group Big Brother Watch.

That came in May last year when the court’s top chamber ruled that the pre-2016 mass surveillance regime was unlawful and contained insufficient protections for confidential journalistic material. An original ruling in 2018 that RIPA violated parts of the European Convention on Human Rights was viewed as not going far enough, and campaigners pursued the case to the higher court.

Ball, a columnist for The New European, told Press Gazette: “It’s starting to feel like the reason the government passes new online surveillance laws every few years is to make it moot when it turns out the old one violated human rights.

“After six years, the government has admitted our surveillance laws didn’t do nearly enough to protect confidential journalism sources – violating protections on privacy and free speech.

“Given how keen our ministers are to communicate privately – through government by Whatsapp – perhaps they should do more to make sure the rest of us can, too?”

Privacy International helped to lead the cases after running a campaign triggered by the UK’s Investigatory Powers Tribunal ruling in 2016 that human rights organisations including Amnesty International had been subject to unlawful surveillance. The group encouraged individuals to make claims to the IPT if they thought they may have been subject to similar intrusions.

Haidar said: “James Ball’s case was one of the cases that was then heard before the IPT. We continued to support the claimants and pro-bono counsel in these cases as part of our work challenging mass surveillance and bulk interception in the UK.

“We fight for protections and safeguards around interception of communications by intelligence agencies because mass interception poses a real risk to freedom of expression, and of course, the right to privacy.”