echr – Courage Foundation

In the summer of 2013, many wondered why journalists in the UK, one of the countries most implicated in mass surveillance, didn’t pursue Edward Snowden’s revelations more aggressively. Even when the British government began to directly intimidate those who were reporting on the Snowden documents – by detaining David Miranda under anti-terrorism legislation and insisting that they should be able to destroy computer equipment within the Guardian offices – protest against these actions in the UK media was muted, with a significant section of the UK press deciding to stand up for the rights of the UK state rather than the freedom to report.

That may now, belatedly, be changing. A new scandal has demonstrated that journalists have a real interest in fighting surveillance – and that current UK practices put source protection right in the firing line. This month, London’s Metropolitan Police published a report that confirmed they had used surveillance powers to obtain the phone records of Sun journalist Tom Newton Dunn without his knowledge in order to find out who his source was.

This direct threat to journalists’ interests has focused attention on just how routine communications data (metadata) orders are in the UK. Unlike ‘live’ intercepts of data or content, which require a court order, British public bodies can obtain historical metadata simply by making a request to a telecommunications provider for any data they hold. There is no judicial involvement in these orders, about half a million of which are made in the UK every year. Even the official charged with overseeing these orders has admitted that the 514,608 requests made in the UK in 2013 “seems to me to be a very large number. It has the feel of being too many.”

There are few safeguards on the use of these orders under the UK’s Regulation of Investigatory Powers Act (RIPA). In particular, RIPA makes no provision for the protection of information that might relate to journalists’ communication with sources, or indeed communications with lawyers. The ability of police to effectively obtain metadata at will means that many, if not most, journalists in the UK are no longer able to offer their sources an assurance of confidentiality. Recent changes to UK surveillance laws suggest that journalists and lawyers should now treat online services and webmail with a similar degree of caution.

Journalists have responded to the Metropolitan Police’s report with op-eds and a Save our Sources campaign. The absence of safeguards in the law is now also the subject of a legal challenge launched in the European Court of Human Rights by the Bureau of Investigative Journalism, the third such challenge to be made to the UK’s surveillance practices since the start of reporting on Edward Snowden’s revelations.

Gavin Millar QC, who is aiding the Bureau of Investigative Journalism with the case, has said that police “routinely” use RIPA powers to obtain journalists’ metadata and identify their sources:

This circumvents the rights of a journalist to protect a source and to a hearing before a judge before any order is made to disclose such information.

The sheer volume of data being harvested by GCHQ under RIPA means that confidential journalistic material is also being covertly accessed and analysed by security and intelligence all the time. Again sources are being identified – but on a much larger scale.

Yet there is no word in RIPA or the government’s code of practice under it about these key journalistic rights. The UK simply flouts the Convention.

A new report on the state of whistleblower protection in some of the world’s richest countries has found that Germany ranks alongside Argentina, Brazil, India, Indonesia, Italy, Mexico, Russia, Saudi Arabia and Turkey as one of the countries that does the least to ensure that whistleblowers can speak out without fear of retribution.

The report, which was co-authored by researchers from Australian NGO Blueprint for Free Speech, Transparency International Australia, Griffith University and Melbourne University, compares G20 countries’ legal frameworks with the commitments they signed up to in the G20’s 2013-14 Anti-Corruption Action Plan, where they agreed:

to ensure that those reporting on corruption, including journalists, can exercise their function without fear of any harassment or threat or of private or government legal action for reporting in good faith

The report sets out 14 separate criteria based on the G20 agreement, other international agreements on whistleblower protection and best practice documents drawn up by intergovernmental organisations and NGOs.

What the report found

The report found that, while there had been real improvement over the past decade, serious shortcomings remained in the legal systems of most G20 countries – and those shortcomings affected most of the areas potential whistleblowers would be concerned about. Provisions for whistleblowers to remain anonymous when using internal channels to express their concerns were identified as a particular weakness across the G20, as were the rules around disclosure to third parties – including, where appropriate, the media.

The provision of independent bodies and mechanisms to deal with whistleblower complaints and to report on how legal protections were being used were also seen as poor across the countries surveyed. In addition, the authors note that where regulations exist, they tend to apply to the public sector only – governments have been much less active in ensuring that private sector whistleblowers can speak out in confidence.

Legal regimes, of course, only tell part of the story. As the report’s authors point out, the formal presence of adequate whistleblower protection laws does not in itself tell you whether they are implemented consistently, or whether “cultural or other norms [in a particular country] indirectly assist in practical protection of whistleblowers.”

As we’ve noted previously, legal frameworks are a particularly poor guide to what might happen in difficult cases, especially those where disclosures have a national security dimension. Some G20 countries, like the UK and Canada, explicitly exclude military and intelligence personnel from their ‘whistleblower’ definition and all the protections in law that derive from that (the report calls this “a glaring gap”). Others, like the United States, have a legislative framework that is well rated – and in theory extends to its intelligence agencies – but in practice apply very different rules, and extreme anti-whistleblower measures, when classified information is involved.

Why did Germany score so badly?

Germany’s poor score in the report might come as a surprise to some, given the country’s renowned worker representation laws and positive reaction to Edward Snowden’s revelations. But in July 2011, the European Court of Human Rights ruled that Germany’s protection of its own whistleblowers was inadequate.

The case was brought by Brigitte Heinisch, a nurse who brought the systematic mistreatment of elderly patients to the attention of the healthcare company she worked for. When appeals to management proved ineffective, Heinisch brought legal action against her employers and wrote a leaflet to explain what was happening in the case. The European Court ruled that the public interest in Heinisch’s disclosures outweighed her employers’ right to protect their business reputation and that her summary dismissal had been “disproportionately severe.” She was later awarded compensation by a German court.

In fact, the German legal code only offers limited protection for public officials who are reporting suspicions of corruption – and this came only after a change of the law in 2009. Germany’s employment courts offer limited redress to those who report wrongdoing in good faith, but there remains a strong bias against anonymous reporting and public disclosure. None of the legislative proposals made since the 2011 judgment have attracted the support necessary to secure a change in the law.

Read the full report here