Media Defence has filed a third-party intervention in the cases of Wieder and Guarnieri v United Kingdom at the European Court of Human Rights. The cases are about allegations of interference by UK intelligence agencies with the communications and related data of an Italian national living in Berlin, and a US citizen living in Florida. Both applicants have worked for news organisations, and one of them has published extensively on surveillance and privacy. The allegations were made following the revelations by Edward Snowden concerning electronic surveillance programmes operated by US and UK intelligence agencies. The applicants’ cases were dismissed in the domestic proceedings on the basis they did not come within the jurisdiction of the UK as they were not within its territory.
The cases provide the Court with an opportunity to define ‘jurisdiction’ in a way that accommodates technological developments relating to cyber operations and ensures a proper level of protection for modern day journalism. The intervention focuses on two issues. First, it argues that state conduct of cyber operations outside its territorial boundaries can give rise to the exercise of jurisdiction by that state, and secondly, it argues that the safeguards that protect against the possibility of unlawful interference with journalistic communications within a state’s territory should also apply outside its territory, and no distinction should be made between interception of communications and receipt of solicited intercept material.
Media Defence Legal Director Pádraig Hughes said “States have the capacity to interfere with modern day investigative reporting, which often involves investigations into complex topics across multiple jurisdictions. Where that interference takes place outside that state’s territorial borders, journalists should be afforded the same protections as would apply if the interference took place within the territory of that state.”
(Note: Media Defence was granted permission by the Court to intervene on condition the written submissions do not comment on the facts or merits of the case and only address general principles of law applicable to the determination of the case.)
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