Government agrees to protect confidential journalistic material after legal challenge

• New amendment would require independent review before MI5 and MI6 can search for or retain confidential journalistic material from bulk data collected through hacking devices
• Currently state bodies can search for and retain confidential material – such as journalists’ emails, calls and texts – within bulk hacking data without needing authorisation, which Liberty says puts communications between journalists and sources at risk
• Government has asked Liberty to drop part of long-standing legal proceedings

The Government has agreed to bring in new safeguards which would protect journalists from having confidential journalistic material, such as their communications with sources, easily accessed by state bodies, following a seven-year legal challenge from human rights organisation Liberty supported by the National Union of Journalists (NUJ).

Under the Investigatory Powers Act 2016 (also known as the Snoopers’ Charter), state bodies such as MI5 and MI6 are currently able to search for confidential journalistic material from the data they collect through bulk hacking devices, and retain that data, without having to get prior independent authorisation. Liberty has said that this leaves communications between journalists and their sources and other confidential journalistic material at risk, and undermines the free press which is central to our democracy.

The Government has now asked Liberty to drop this part of its legal proceedings, which was due to go before the High Court later this year, and has introduced a new requirement via Parliament for an independent body to review all requests to search for and retain confidential journalistic material from bulk hacking data. The Government had already conceded that these safeguards were required for bulk interception, and now it has also conceded that they are required for bulk hacking.

The requirement has been added into the Investigatory Powers (Amendment) Bill, which MPs are due to debate as part of its second reading in Parliament today (Monday 19 February).

Liberty has welcomed the amendment, but has said it will formally only drop this part of its legal proceedings once the Bill has been passed and there is clarity on when the safeguards will be commenced.

Megan Goulding, Liberty lawyer, said:  

“This is a significant victory for the rights of journalists and the free press.

“For close to a decade, confidential journalist material has been spied on en-masse with few safeguards or protections for how that information is gathered or used. This undermines core pillars of our democracy, and has left journalists particularly exposed to state surveillance and interference. The introduction of a new requirement for an independent body to oversee when the intelligence agencies can search for and retain confidential journalistic material is a welcome development, and we urge the Government to commence these new safeguards in as soon as possible.

“However, while this is good news for journalists, we remain concerned about the wider practice of mass surveillance, which means the state is continuing to hoover up the messages, calls, web history and more of millions of people. The state’s bulk surveillance powers do not make us safer – they threaten our privacy and freedom of expression, and undermine our democracy. The Government must now look to end the practice of bulk surveillance in its entirety.”

Michelle Stanistreet, NUJ general secretary, said:

“The Government’s improved safeguards for journalists are thanks to the commitment by Liberty and the NUJ to challenge harmful legislation permitting access to confidential journalistic material. The right to protect sources and journalists’ communications will always be defended by the NUJ, state bodies should never be granted unfettered access and the government’s ill-placed efforts should have been dropped several years ago.

“We urge government to now recognise the need for swift implementation of safeguards and urge an end to legislation that undermines media freedom and threatens journalists’ safety.”

Shamik Dutta and Caleb Simpson of Bhatt Murphy, Ben Jaffey KC of Blackstone Chambers, and David Heaton and Sophie Bird of Brick Court Chambers act for Liberty.