The Independent Police Complaints Commission (IPCC), the equivalent to GSOC in England and Wales, may not access journalists' phone records without explicit judicial authorisation.
The IPCC, and its counterparts in Scotland and Northern Ireland, is subject to the Regulation of Investigatory Powers Act (RIPA), which governs how public bodies may conduct surveillance and access people’s electronic communications.
The legislation was amended last year after it emerged that, in the three years to October 2014, 19 British police forces used it to obtain journalists’ phone records to identify sources.
The change followed a "Save our Sources" campaign by the National Union of Journalists (NUJ) and the Press Gazette.
Before the law was changed, police investigators only needed the authorisation of a senior officer to access a citizen’s phone records, regardless of their profession. Under the new legislation, police and other investigating authorities must obtain a court order to access information about a journalist’s contacts.
Media fears
“There is a strong public interest in protecting a free press and freedom of expression in a democratic society, including the willingness of sources to provide information to journalists anonymously,” it says. “Where an application is intended to determine the source of journalistic information, there must therefore be an overriding requirement in the public interest.”
Communications data that may be considered to determine journalistic sources includes data relating to: journalists’ communications addresses; the communications addresses of those persons suspected to be a source; and communications addresses of persons suspected to be acting as intermediaries between the journalist and the suspected source.
Even if investigators are seeking access to a journalist’s phone records for reasons unrelated to journalistic work, the application can be turned down on the basis that it risks undermining the confidentiality of sources.
“Where the application is for communications data of a journalist, but is not intended to determine the source of journalistic information (for example, where the journalist is a victim of crime or is suspected of committing a crime unrelated to their occupation), there is nevertheless a risk of collateral intrusion into legitimate journalistic sources,” the legislation says.
Proportionality needed
“In such a case, particular care must therefore be taken to ensure that the application considers whether the intrusion is justified, giving proper consideration to the public interest. The necessity and proportionality assessment also needs to consider whether alternative evidence exists, or whether there are alternative means for obtaining the information being sought.”
Apart from the “Save our Sources” campaign by journalists’ organisations, much of the impetus for changing the law to protect journalists’ sources came from the Interception of Communications Commissioner’s Office (IOCCO).
This is an independent, statutory body responsible for keeping under review the interception of communications and the acquisition and disclosure of communications data by intelligence agencies, police forces and other public authorities. It reports directly to the prime minister every six months.
Last November, the IOCCO denounced Police Scotland as "reckless" after it emerged that the force had ignored the new guidelines to access the phone records of Sunday Mail journalists in an effort to identify a police whistleblower. Police Scotland admitted that it had acted wrongly in failing to obtain a court order before accessing the phone records and the force has now established "significant measures in order to prevent any recurrence of such contraventions".
