The Investigatory Powers Tribunal has awarded journalist Vincent Kearney £20,000 after finding that multiple attempts by public authorities to obtain his communications data unlawfully interfered with his journalistic rights and the protection afforded to his sources.
Mr Kearney, a former BBC Northern Ireland home affairs correspondent, and the BBC brought human rights claims concerning the surveillance and acquisition of his communications data. Following concessions by several public authorities that the interference had been unlawful, the Tribunal was required to consider whether those concessions went far enough and what remedy should be provided. The claim was heard by Lady Carmichael, Chamberlain J and Stephen Shaw KC.
Mr Kearney served as home affairs correspondent for BBC Northern Ireland for 13 years before leaving the position in 2019. Shortly after his appointment in 2006, MI5 made an application under the Regulation of Investigatory Powers Act 2000 seeking communications data relating to him. The application did not identify Mr Kearney as a journalist or acknowledge that its purpose was connected to identifying his journalistic sources.
In 2009, MI5 made a further application seeking all call-related data from Mr Kearney’s phone. Although the application identified him as a journalist, it failed to apply the stricter standard governing applications seeking to identify journalistic sources, which requires an “overriding requirement in the public interest”.
Applications made by the PSNI in the same year, seeking to identify an individual who had claimed responsibility for the murder of PC Stephen Carroll during a telephone call to Mr Kearney, similarly failed to recognise the heightened protection applicable to journalistic communications.
Following a 2011 documentary by Mr Kearney concerning alleged failures of independence within the Office of the Police Ombudsman for Northern Ireland, the PSNI sought further information from his phone. The request was extensive, including GPS data covering a four-month period, but again failed to acknowledge Mr Kearney’s status as a journalist. Data obtained under that authorisation were subsequently accessed by Durham Constabulary as part of an investigation into alleged police collusion in the Loughinisland massacre and were retained.
Further PSNI investigations also obtained data relating to Mr Kearney despite similar failures to apply the stricter requirements applicable to requests for journalistic communications.
In considering the applicable legal principles under Article 10 of the European Convention on Human Rights, the Tribunal referred to Goodwin v United Kingdom, in which the European Court of Human Rights recognised the protection of journalistic sources as a fundamental condition of press freedom. Without such protection, potential sources may be deterred from providing information on matters of public interest, undermining the media’s role as a public watchdog.
The Tribunal held that interference with the confidentiality of journalistic sources could only be justified where there was an “overriding requirement in the public interest”, with the necessity for such interference required to be convincingly established.
The Tribunal further emphasised that demonstrating that there was no alternative way of achieving the objective of an investigation would not, by itself, establish that interference was proportionate. The objective being pursued must itself be sufficiently important to outweigh the public interest in protecting journalistic sources. The fact that a source may have acted unlawfully in providing information was also insufficient, on its own, to justify interference with journalistic communications.
Having applied those principles, the Tribunal found that all six sets of interferences were neither in accordance with the law nor proportionate.
The Tribunal then considered the appropriate remedy. Referring to domestic authorities concerning damages for breaches of Convention rights, including Faulkner v Parole Board, it noted that domestic courts are not bound by the approach taken by the Strasbourg Court when awarding compensation, but should take Strasbourg principles into account and seek to award damages broadly consistent with comparable cases.
The Tribunal placed particular weight on the number of interferences and the fact that they had occurred over a period of years, including many years after the European Court of Human Rights had established the heightened protection afforded to journalistic sources in Goodwin.
It also considered Mr Kearney’s evidence concerning the impact of the surveillance on him and, importantly, on the confidence that potential sources could place in the confidentiality of their communications with him. The Tribunal stressed that the heightened protection afforded to journalists is not primarily for the personal benefit of the journalist, but serves the wider public interest in ensuring that journalists can receive and publish information from confidential sources.
Accordingly, the Investigatory Powers Tribunal awarded Mr Kearney £10,000 against the PSNI and a further £10,000 against MI5, amounting to total damages of £20,000.
The decision reaffirms the particularly strong protection afforded to journalistic communications under Article 10 and highlights that public authorities must apply heightened safeguards where the acquisition of communications data may identify or compromise confidential journalistic sources.