WIEDER AND GUARNIERI v. THE UNITED KINGDOM JUDGMENT
he was temporarily out of the country, and analysed after his return, the State
would have jurisdiction in respect of the analysis but not in respect of the
original interception. There was no rational basis for this distinction, which
made little sense in view of the fact that the proliferation of online
communications had deprived national borders of their meaning.
(ii) The third party intervener
85. Media Defence submitted that Article 1 of the Convention should be
interpreted in a manner that responded to the challenges of State conduct of
cyber operations and the consequential implications for media freedom
namely, the fact that such operations were capable of intercepting journalistic
communications and related data that could identify journalists’ sources.
Modern day journalism routinely involved investigations across multiple
jurisdictions and technological developments had strained the legal
frameworks designed to protect journalists and the confidentiality of their
sources.
86. According to Media Defence, the notion of “State agent authority and
control” should not be interpreted so as to give rise to arbitrary distinctions.
In their view, there was no difference between State agents overpowering a
journalist while he was abroad in order to secure information on his person,
and using sophisticated technology to obtain that same information. In both
scenarios, the aim and outcome of the operation was the same.
(iii)The Court’s assessment
(α) General principles
87. The exercise of jurisdiction is a necessary condition for a Contracting
State to be able to be held responsible for acts or omissions imputable to it
which give rise to an allegation of the infringement of rights and freedoms set
forth in the Convention (see H.F. and Others v. France, [GC], nos. 24384/19
and 44234/20, § 184, 14 September 2022 and Catan and Others v. the
Republic of Moldova and Russia [GC], nos. 43370/04 and 2 others, § 103,
ECHR 2012 (extracts), and the references therein). In the recent case of
H.F. and Others v. France (cited above, §§ 185-88), which concerned a
decision by France not to repatriate a number of its nationals who were living
in camps in north-eastern Syria, the Grand Chamber identified the following
general principles:
“185. As to the meaning to be given to the concept of ‘jurisdiction’ for the purposes
of Article 1 of the Convention, the Court has emphasised that, from the standpoint of
public international law, a State’s jurisdictional competence is primarily territorial. It is
presumed to be exercised normally throughout the territory of the State concerned. In
line with Article 31 § 1 of the Vienna Convention on the Law of Treaties of 1969, the
Court has interpreted the words ‘within their jurisdiction’ by ascertaining the ordinary
meaning to be given to the phrase in its context and in the light of the object and purpose
of the Convention. However, while international law does not exclude a State’s
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