In what continues to be a post-Leveson media malaise journalists have become acutely aware of any potential threat to the freedom of the press. The latest manifestation of this nervousness is the negative reaction to the proposed Espionage Act, a possible replacement for the Official Secrets Act (or, more properly, Acts).
It has been criticised by both mainstream newspapers of a right-wing persuasion and independent journalists who are regarded as left-wing. None of them like the proposals outlined in a Law Commission consultation document and have been quick to denounce them.
The critics argue that it would have the effect of equating journalists with spies. Reporters who obtain leaked information would face lengthy prison sentences along with the whistleblowers who supply it to them.
They cite the paragraph in the 326-page consultation document, “Protection of Official Data”, which states that anyone who communicates information deemed “to prejudice the United Kingdom’s safety or interests,” and anyone “who obtains or gathers it,” will be regarded as having committed an offence.
It further states that there will be “no restriction on who can commit the offence.” It will apply to journalists and their sources: be they politicians, bureaucrats, or concerned members of the public who stumble across alleged secrets.
One unnamed critic, quoted by The Guardian, referred to such a proposed law as better suited to a “banana-republic dictatorship” and a sign of an “increasingly unfree society.”
The Guardian’s former investigations editor, David Leigh, was outraged. In his view it would “have an indefensible chilling effect on free speech” and “open the way to the criminalisation of bona fide journalists for allegedly ‘spying.’”
Before I get to Leigh’s forthright and detailed response to the Commission’s proposals, I must record that I echoed his criticisms in an article I wrote a couple of weeks ago for the New York-based press freedom organisation, the Committee for the Protection of Journalists.
My piece engendered a polite email from one of the law commissioners, David Ormerod QC, professor of criminal justice at University College London, who was discombobulated by the hostile response to the document.
In company with the Commission chairman, Lord Justice Bean, he was eager to “correct some common misunderstandings” by journalists and several politicians about the proposals.
They were particularly exercised by reports suggesting that their ideas amount to a further restriction on journalists who seek, in the public interest, to hold state power to account. Not so, they said. The critics are guilty of falsification. To set out their position they compared so-called myths with so-called facts. Three examples:
“Myth: Unauthorised disclosures to journalists to be made criminal.
Fact: They are already criminal under the Official Secrets Act 1989.
Myth: Whistleblowing to be made an offence.
Fact: The Official Secrets Act 1989 already criminalises making unauthorised disclosures of certain types of sensitive information.
Myth: The Law Commission will extend the offences to ‘anyone’ including journalists.
Fact: The offences contained in the Official Secrets Act 1911 can already be committed by anyone - including journalists.”
Ormerod and Bean also point out that there is no public interest defence for disclosure in the current secrecy acts. Although the Commission does not believe the Espionage Act should have one, they propose that a potential whistleblower should “have the option of bringing his or her concern to the attention of an independent statutory commissioner” to “investigate the concern.”
In other words, journalists should not have a role in such disclosures. Moreover, should reporters happen to receive or publish leaked information, they would not be able to plead public interest as justification.
The Commission states: “We agree with Lord Justice Leveson’s conclusion that journalistic activity is already sufficiently protected by the safeguards that currently exist.”
It hardly needs saying that just because the current law is already weighted against journalists it is anything but a comfort to know that the proposed law will reinforce that situation. Nor does it gladden the heart to hear that journalists cannot rely on a specific public interest defence under the new law.
Now for Leigh’s response. He contends that the idea of creating an Espionage Act came initially from the government, specifically the Cabinet Office, in the wake of The Guardian’s Edward Snowden revelations in 2013 about surveillance by the US and British intelligence services.
He argues that it would have been either impossible or difficult to convict journalists for collecting and disseminating Snowden’s leaks under the present laws.
But the Commission’s proposals would make prosecution altogether easier because the authorities would “merely” have to have demonstrate that the journalist’s gathering of information was “capable of benefiting a foreign power” and “might” prejudice the safety or interests of the state.
Leigh also takes issue with the proposal that it would be an offence if a reporter has “reasonable grounds to believe that that disclosure is capable of damaging security and intelligence, defence or international relations.”
He told the Commission: “This makes it easy to convict a journalist... because a very broad range of material is ‘capable’ of damage, whether or not any damage actually occurs, or indeed whether or not, as in the case of Snowden, the journalists have in fact taken great care to avoid actual or likely damage.”
I hope that the Commission will take Leigh’s objections into account during this consultation period, which runs until May 3. (If you wish to comment on the document you can do so here on the commission website).
The commissioners might also consider another worrying aspect in the proposals, as reported by The Times. One provision would criminalise the disclosure of information that might “jeopardise the country’s economic well-being or damage international relations.”
It is not overly far-fetched to imagine that it would cover leaks about the UK’s Brexit negotiations with the European Union should they be deemed harmful to Britain’s economic well-being.
And let us also keep in mind the fact that journalists are already unhappy with last year’s enactment of the Investigatory Powers Act (the so-called Snoopers’ Charter). It permits the interception of communications, thus potentially compromising the relationship between reporters and their sources.
However fanciful some may find it to conclude that freedom of the press is under attack, the evidence does point in that direction.
*The views expressed in this blog are those of the author and not IPSO*