The UK government has acknowledged that section 8(4) of the Regulation of Investigatory Powers Act (“RIPA”) (which has since been repealed) violated Articles 8 and 10 of the European Convention on Human Rights (ECHR). In relation to Article 10, it specifically acknowledged that the way in which security agencies handled confidential journalistic material violated fundamental rights protected by Article 10.
As part of a friendly settlement with two applicants, the UK government acknowledged that section 8(4) of the previous investigatory powers regime was not compliant with Article 8 of the Convention, and in relation to the treatment of confidential journalistic material, Article 10 of the Convention, for the reasons identified by the European Court of Human Rights Grand Chamber in the leading case Big Brother Watch and others v. the United Kingdom on 25 May 2021.
The applicants are a human rights NGO, Human Rights Watch (HRW), and a journalist. HRW is headquartered in New York with major offices in the United Kingdom, and the individual applicant is a UK resident. Along with other applicants, they had complained that UK’s bulk interception regime violated their rights to privacy (Art 8) and freedom of expression (Art 10) under the ECHR.
The filed their initial complaint following PI’s campaign which encouraged individuals and organisations to make applications to the UK’s Investigatory Powers Tribunal (IPT) – the judicial body responsible for overseeing UK intelligence agencies – to request investigations into whether they had been subjected to unlawful surveillance by the UK’s intelligence agencies. You can find more information on the origins of the case and PI’s involvement [here](Link to main page).
Although these applications were made in 2016, the European Court decided not to examine these complaints until it reached a decision in the closely related case, Big Brother Watch and others v UK, in which PI was also an applicant. The Grand Chamber of the European Court of Human Rights issued a landmark ruling on 25 May 2021 that the UK’s mass surveillance regime, as exposed by whistle-blower Edward Snowden in 2013, breached people’s rights to privacy and freedom of expression.
Today, the UK government has acknowledged that the way in which its security services handled communications, including confidential journalistic material, violated fundamental human rights. This is an important development as the UK government has previously been reluctant to admit this.
It is also significant because it illustrates that sustained pressure from individuals and organisations who are willing to challenge the lawfulness of government surveillance can have a real impact: governments are forced to be more transparent, and safeguards are established.
The UK government’s acknowledgement reaffirms what the European Court found in the Big Brother Watch and others case. In that case, the Court highlighted its concerns with the UK’s mass interception regime by addressing its impact on freedom of expression, and in particular of the rights of journalists and their sources.
For a closer look at other aspects of the case you can access PI’s longer analysis here.
PI welcomes this settlement as a positive development in the fight against mass surveillance. However, as always, the fight is not over: just as the UK government has acknowledged that, in order to operate in accordance with human rights standards, its investigatory powers regime must include safeguards for journalistic material, it must also implement robust safeguards for lawyers’ communications – in particular, legally privileged communications – as well as NGOs’ and human rights defenders’ sensitive communications. Importantly, in another case, Ekimdhiev v Bulgaria (No. 2), the European Court already emphasised the importance of protecting lawyers’ communications.
The fight against the use of mass surveillance by the UK and other governments around the world continues.