Advocate General: DRIPA  Only Legal With Appropriate Safeguards in Place

The Advocate General has said that the Data Retention and Investigatory Powers Act 2014 was only legal with appropriate safeguards in place, and has highlighted the need for adequate protection of journalists’ sources.

Advocate General Saugmandsgaard Øe delivered his opinion in the Data Retention and Investigatory Powers Act 2014 case on Tuesday. The case was initially brought by MPs David Davis and Tom Watson (though Davis withdrew his name once appointed to the Cabinet), and concerns whether the invasive surveillance measures in the DRIPA are lawful.

In references for a preliminary ruling, the UK’s Court of Appeal and the Administrative Court of Appeal, Sweden had asked the European Court of Justice  to consider whether  mass data retention is compatible with EU law.

The Advocate General found that the law was only legal if its uses were restricted and appropriate safeguards were in place.  He said: “Solely the fight against serious crime is an objective in the general interest that is capable of justifying a general obligation to retain data, whereas combating ordinary offences and the smooth conduct of proceedings other than criminal proceedings … are not.”

The Advocate  General also highlighted the need for adequate protection for journalists’ sources: “…independent review preceding access to data is necessary so that data that is particularly sensitive in terms of the fundamental rights at issue in the main proceedings, such as data that is subject to professional privilege or data which makes it possible to identify a journalist’s source, may be dealt with on a case-by-case basis.”

This recognition of the need to protect sources  with a petition launched by Press Gazette calling for greater protections for journalists’ sources in the Investigatory Powers Bill, to which the NMA has given its support.

The petition, which will be delivered to Home Secretary Amber Rudd, says that all state agencies’ requests to use these powers in relation to journalistic activities should be decided by a judge, with “a presumptive right for the media to make representations, so that the judge knows the counterarguments.”

“We also ask that more stringent tests be set out in the Bill with full weight given to the public interest in freedom of expression and protection of sources,” the petition adds.