7Journalists’ sources
7.1Communications between journalists and their sources is another category of confidential information for which human rights law requires special protection. The important role of the media in a democratic society, including in holding the Government to account, is recognised by the European Court of Human Rights, and the confidentiality of journalists’ sources is therefore an important aspect of the right to freedom of expression in article 10 ECHR.55
7.2Interferences with the confidentiality of journalists’ sources can have a “chilling effect” on the willingness of sources to talk to the media, which may limit the media’s access to whistleblowers who are prepared to expose wrongdoing to the media but in the expectation of anonymity. Such interferences with the communications between journalists and their sources therefore require the most careful scrutiny. There is no immunity from disclosure, but the Court has held that only “an overriding requirement in the public interest” is capable of justifying such interferences.56
7.3Special safeguards are therefore required in order to protect the confidentiality of journalists’ sources. The most significant such safeguard is the requirement that there be “review by a judge or other independent and impartial decision-making body”.57 In December 2015 the Investigatory Powers Tribunal held that the previous legal regime under RIPA was incompatible with the right to freedom of expression in Article 10 ECHR because it did not contain effective safeguards in a case in which the authorisations had the purpose of obtaining disclosure of the identity of a journalist’s source.58 However, it also held that the incompatibility had been remedied by the amended Code of Practice issued in March 2015 which requires law enforcement to obtain independent authorisation through the use of PACE in such cases.
7.4The adequacy of the current protections provided for journalists’ sources in UK law in the context of investigatory powers is currently under consideration by the European Court of Human Rights in a pending case brought by the Bureau of Investigative Journalism and a Guardian journalist, Alice Ross.59
7.5The Joint Committee on the draft Bill considered that protection for journalists’ sources should be fully addressed by way of substantive provisions on the face of the Bill.60 The Joint Committee was particularly concerned about the possibility that the relevant provision in the draft Bill provided less protection for journalists’ sources than the current law in the Police and Criminal Evidence Act 1984 (“PACE”) and the Terrorism Act 2000, which require applications to be made to a court for a production order, on notice to the relevant journalist or media organisation which therefore has an opportunity to appear at the hearing before the judge to make arguments about the need to protect the confidentiality of communications with their source.
7.6The Joint Committee recommended that the Government should reconsider the level of protection which the Bill affords to journalistic material and sources, which should be at least equivalent to the protection which already exists under the Police and Criminal Evidence Act 1984 and the Terrorism Act 2000. It recommended that the Bill should make it clear that nothing in the Bill enables the investigatory authorities to circumvent the protections for journalists’ sources contained in PACE and the Terrorism Act, which enable the media to know about an application for communications data and make representations about the proposed interference.61
7.7The Government’s response to pre-legislative scrutiny of the draft Bill made some welcome changes from the draft Bill in relation to this issue. The clause in the Bill which requires Judicial Commissioner approval for authorisations to identify or confirm journalistic sources, for example, now applies to the security and intelligence agencies (which were exempt in the previous version in the draft Bill).62 The relevant Schedule of the Bill also now makes clear that all the Codes of Practice accompanying the Bill “must include provision designed to protect the public interest in the confidentiality of sources of journalistic information”,63 and the draft Codes of Practice make relevant provision.
7.8However, the Government has not accepted the main recommendation of the Joint Committee on the draft Bill that the safeguards for journalists’ sources in the Bill should be equivalent to those provided by PACE and the Terrorism Act. Most significantly, the Bill provides for Commissioner approval for authorisations to identify or confirm journalistic sources, but the applicant for authorisation is not required to give notice of the application to the media,64 and the test to be applied by the Judicial Commissioner is whether they consider that there are “reasonable grounds” for considering that the requirements in the Act are satisfied in relation to the authorisation.65
7.9The Government considers that both the clause in the Bill, and the overall approach to the protection of journalists’ sources, are compatible with the right to freedom of expression in Article 10 ECHR. In the Government’s view, PACE and the Terrorism Act 2000 provide appropriate mechanisms for law enforcement bodies to obtain journalistic material from journalists themselves, but RIPA and, in future, the new Investigatory Powers Act, is the appropriate mechanism for acquisition of communications data from Communications Service Providers. The Government is opposed to advance notification of requests for communications data on the basis that “in many cases such notification would alert the subject under investigation to the ongoing investigation, to the detriment of the case. In addition no other applications for communications data require prior notification, nor do applications made to a court by the police for comparable data, for example banking records, or for other police powers such as application for covert surveillance.”66
7.10The Government’s preference for putting the additional protections for journalists’ sources in the Codes of Practice rather than the Bill “reflects the fact that it is much harder to define in law what constitutes a journalist (as opposed to legally privileged material), as seen during the Joint Committee’s evidence sessions on this issue.”67
7.11We welcome the changes made by the Government to the Bill in relation to the protection of journalists’ sources and the inclusion of safeguards in all of the draft Codes of Practice. We also recognise that there is a real difficulty about how to define “journalism” in the digital age. However, we share the concern of the Joint Committee on the draft Bill that the safeguard of independent review by a Judicial Commissioner provided in the Bill is inferior to the equivalent safeguard in PACE and the Terrorism Act 2000 because the hearing before the Commissioner will not be on notice. In our view, this gives rise to a risk of incompatibility with Article 10 ECHR. We accept that notification should not prejudice the investigation but consider that this can be dealt with by the wording of the clause.
7.12We recommend that the Bill should provide the same level of protection for journalists’ sources as currently exists in relation to search and seizure under the Police and Criminal Evidence Act 1984, including an on notice hearing before a Judicial Commissioner, unless that would prejudice the investigation. The following amendment would give effect to this recommendation:
Clause 68
Page 54, line 14, in subsection (4), before ‘required to give notice’ leave out ‘not’
Page 54, line 16, at end of subsection (4) insert ‘unless an application without such notice is required in order to avoid prejudice to the investigation.’
Page 54, line 16, after subsection (4) insert new subsection
‘( ) Schedule 1 to the Police and Criminal Evidence Act 1984 shall apply to an application for an order under this section as if it were an application for an order under that Schedule.’
This amendment seeks to ensure that the same level of protection is provided for journalists’ sources under the Bill as is currently provided in PACE.
55 See David Anderson QC, Independent Reviewer of Terrorism in Legislation, A Question of Trust, June 2015, paras 5.49-5.51
56 Goodwin v UK (App. No. 17488, judgment of 27 March 1996)
57 See, for example, Sanoma Uitgevers BV v The Netherlands (App. No. 38224/03, judgment of 14 September 2010)
58 News Group Newspapers v Metropolitan Police Service
59 Bureau of Investigative Journalism and Alice Ross v UK (App. No. 62322/14)
60 Joint Committee on the Draft Investigatory Powers Bill, Session 2015–16, Draft Investigatory Powers Bill, HL Paper 93, HC 651, paras 539-556
61 Joint Committee on the Draft Investigatory Powers Bill, Session 2015–16, Draft Investigatory Powers Bill, HL Paper 93, HC 651, recommendations 48-49
62 Investigatory Powers Bill, Clause 68
63 Investigatory Powers Bill, Schedule 7, para. 2(1)(a)
64 Ibid., Clause 68(4)
65 Ibid., Clause 68(5)
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1 June 2016