UK Draft Bill on Surveillance Threatens Protection of Journalists' Sources

Update: 13 Sep 2018 State replied
Year 16 Nov 2015 Country United Kingdom Category Other acts having chilling effects on media freedom Source of threat State Partner EFJ/IFJ , Article 19 Alert level Level 2
16 Nov 2015 United Kingdom Other acts having chilling effects on media freedom State EFJ/IFJ , Article 19 Level 2

On November 2015, a draft bill on surveillance was introduced to the British Parliament by Theresa May, Home Secretary of the UK. Designed to reinforce the investigative powers of the police and intelligence services, the text grants to police forces, tax inspectors and other public servants the power to access data related to communications’ traffic (including internet communications) without prior judicial review. Dunja Mijatović, OSCE Representative for Media freedom said: “The proposed bill provides for a wide expanse of surveillance activities that could fundamentally alter the way the state protects the freedom to seek, receive and impart information. (…) Any legislation that allows government snooping must be narrowly drawn and include guarantees, as a basic pre-condition for investigative journalism”. Journalists of the Guardian daily called for the revision of the draft bill nicknamed ‘snooper’s charter’ : “If sources understand they can be identified in this way they will be reluctant to risk dismissal (or possibly prosecution) to pass on information”.

Updates

01 Feb 2018 : On 30 January 2018, Appeal Court judges ruled the mass digital surveillance regime foreseen by the Investigatory Powers Act illegal. According to the judges, this regime lacked adequate safeguards around accessing personal data, including the absence of “prior review by a court or independent administrative authority”.
29 Nov 2016 : On 29 November 2016 the Investigatory Powers Bill received Royal Assent, thus officially becoming law.
18 Nov 2016 : On 17 November 2016, the House of Lords has passed the Investigatory Powers Bill. The House of Lords' agreement to the text means that it just awaits Royal Assent to become law.
07 Mar 2016 : The UK Government introduced proposals to Parliament, revising the draft Investigatory Powers Bill. The Parliament is expected to review the re-drafted Bill and pass the final version by the end of 2016, when the current legislation governing surveillance laws expires.

State replies

15 Dec 2015 : Response of the United Kingdom Government

Follow-ups

17 Sep 2018 : OSCE Representative welcomes landmark decision by European Court of Human Rights on Investigatory Powers Act in the United Kingdom
13 Sep 2018 : On 13 September 2018, the ECHR ruled that the bulk interception regime and the regime for obtaining communications data from communications service providers violated both article 8 and article 10. With regard to article 10, the Court stressed that there were insufficient safeguards in respect of confidential journalistic material. It further found that the regime for sharing intelligence with foreign governments did not violate either Article 8 or Article 10. This judgment is not final.
18 Nov 2016 : OSCE Representative warns of negative consequences for investigative journalism when Investigative Powers Bill becomes law in the United Kingdom
17 May 2016 : Commissioner publishes Memorandum on surveillance in the UK
10 Nov 2015 : OSCE media freedom representative urges caution and further consideration of new Investigatory Powers Bill in the United Kingdom

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20 March 2018

On 20 March 2018, the European Court of Human Rights issued its Grand chamber judgment on Mehmet Altan’s case. The Court found there had been a violation of Article 5 § 1 (right to liberty and security) and a violation of Article 10 (freedom of expression) of the European Convention for Human Rights. With regards to article 5 §1, according to the Court findings, “Mr Altan’s continued pre-trial detention, after the Constitutional Court’s clear and unambiguous judgment of 11 January 2018 (…), could not be regarded as ‘lawful’ ”. The Court held that “for another court to call into question the powers conferred on a constitutional court to give final and binding judgments on individual applications ran counter to the fundamental principles of the rule of law and legal certainty, which (…) were the cornerstones of the guarantees against arbitrariness”. Under Article 10, the Court held in particular that “there was no reason to reach a different conclusion from that of the Constitutional Court, which had found that Mr Altan’s initial and continued pre-trial detention, following his expression of his opinions, constituted a severe measure that could not be regarded as a necessary and proportionate interference in a democratic society”. The Court pointed out in particular that “criticism of governments and publication of information regarded by a country’s leaders as endangering national interests should not attract criminal charges for particularly serious offences such as belonging to or assisting a terrorist organisation, attempting to overthrow the government or the constitutional order or disseminating terrorist propaganda”.

20 March 2018

On 20 March 2018, the European Court of Human Rights issued its Grand chamber judgment on Şahin Alpay’s case. The Court found there had been a violation of Article 5 § 1 (right to liberty and security) and a violation of Article 10 (freedom of expression) of the European Convention for Human Rights. With regards to article 5 §1, according to the Court findings, “Mr Alpay’s continued pre-trial detention, after the Constitutional Court’s clear and unambiguous judgment of 11 January 2018 (…), could not be regarded as ‘lawful’ ”. The Court held that “for another court to call into question the powers conferred on a constitutional court to give final and binding judgments on individual applications ran counter to the fundamental principles of the rule of law and legal certainty, which (…) were the cornerstones of the guarantees against arbitrariness”. Under Article 46 (binding force and execution of judgments) of the Convention, the Court held that it was incumbent on the respondent State to ensure the termination of Mr Alpay’s pre-tria detention at the earliest possible date. Under Article 10, the Court held in particular that “there was no reason to reach a different conclusion from that of the Constitutional Court, which had found that Mr Alpay’s initial and continued pre-trial detention, following his expression of his opinions, constituted a severe measure that could not be regarded as a necessary and proportionate interference in a democratic society”. The Court pointed out in particular that “criticism of governments and publication of information regarded by a country’s leaders as endangering national interests should not attract criminal charges for particularly serious offences such as belonging to or assisting a terrorist organisation, attempting to overthrow the government or the constitutional order or disseminating terrorist propaganda”.
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