How a proposed secrecy law would turn journalism into espionage | Duncan Campbell and Duncan Campbell
Hbefore going back. Almost 50 years ago, one of us was arrested under the Official Secrets Act for working on an article for Time Out magazine, where the other of us was an editor. chief. This led to the so-called ABC case, named after fellow journalist Crispin Aubrey, a brave ex-soldier whistleblower called John Berry, and the aforementioned Campbell. A lengthy Old Bailey lawsuit followed in 1978 and with it a major discredit of the act’s use against the press.
Shortly after, the power of pre-World War I, empire-era secrecy laws sank further when a jury acquitted the late Clive Ponting, a senior official who sent MPs information on government deception during the Falklands War. Hasty legislative reform failed in 2004 when evidence against GCHQ whistleblower Katharine Gun had to be withdrawn at the last minute. The government feared his trial would reveal that he had been told the war in Iraq would be illegal.
The Home Office now wants stricter and more extensive secrecy laws that would deter sources, editors and journalists, potentially subjecting them to uncontrolled official bans not approved by a court, and punished much more severely if they do not comply. In these boisterous political times, a government consultation released two months ago has garnered little worrying attention. Although presented as a fight against the hostile activities of state actors, the new laws, if passed, would trap journalists and sources whose job it is to report “unauthorized disclosures” that are in the best interests of the public. public.
Approved by Home Secretary Priti Patel, the consultation argues that press disclosures may be worse than espionage, as the work of a foreign spy “will often only benefit one state or actor. “.
Calling on Parliament to consider “increased maximum sentences”, the Home Office says there is now not necessarily “a distinction of seriousness between espionage and the most serious unauthorized disclosures”, including “subsequent disclosure” in the press. Journalism could even create “much more serious damage” than a spy. Yet the 66-page document does not once mention “journalism” and only refers to “subsequent disclosure… without permission”.
A new proposal for so-called civil ordinances would create “a power of last resort which would allow [the government] to impose a series of restrictions on particular individuals ”. The orders “could include a range of restrictive and preventive measures, including measures to prevent an individual from associating with certain people or visiting specified sensitive places” and should “be imposed by the executive rather than the courts. “. The orders would create “an important deterrent against those who may be vulnerable and susceptible to coercion and influence from a foreign state.”
The process began in 2016 when the Law Commission – a statutory body that reviews law in England and Wales – began work on ‘official data protection’, saying reforms were needed ‘to bring in law. law in the 21st century ”. The changes were supposedly justified because of the ability of “hostile states” to carry out cyber attacks and because the potential impact of espionage and leaks had increased.
The commission’s initial proposals in 2017 didn’t garner much attention until an article in The Register, the online tech publication, told readers that “proposals in the UK for a new espionage law which could imprison journalists as spies were hastily developed by legal advisers ”. The article pointed out that the proposals would put leaks and whistle-blowing in the same category as spying for foreign powers – and that leakers and journalists could face the same extended prison terms as foreign agents. The penalties would apply even if – like Edward Snowden or Chelsea Manning – the person responsible for the leak was not British, or in Britain, or was acting in the public interest.
The Law Commission neglected to consult widely with the media or freedom of expression organizations. After the article appeared, there were protests in the press from all walks of life, from the Daily Telegraph to the Guardian to the Daily Mail. An avalanche of criticism from NGOs and press and media organizations, such as the National Union of Journalists, followed; the public consultation was extended.
Still slowed down by the impact of Covid-19, the Law Commission published revised proposals last fall. They recommended that “a legal defense of public interest be created for everyone … including civilians and journalists, on whom they can rely in court.” Journalists and sources should not be convicted if it was in the public interest for the information disclosed to be known to the recipients. An independent statutory whistleblower commissioner “should be established to receive and investigate allegations of wrongdoing or criminality”.
The Interior Ministry wants to reject these proposals as not being “the right balance in this area”. The idea that any unauthorized release of official data could be in the public interest should not be possible, he said. He mocks the idea of whistleblower protection, asking “any evidence … why would current government whistleblowing processes require the creation of a statutory commissioner?”
And, he says, a whistleblower should also not be allowed to argue that they acted in the public interest. One of the main changes is to broaden the scope of prosecution. “For officials,” according to the proposals, “offenses should not continue to require proof of damage, as is currently the case. Instead, they should require proof of a sufficiently culpable mental state, by which we mean, for example, proof of the defendant’s knowledge or belief that disclosure would cause harm.
The maximum prison sentences that could be imposed on publishers or sources – currently two years under the Official Secrets Act for unauthorized disclosures – would be multiplied to an unspecified higher level.
Responses to the new proposals are expected before July 22. If editors, reporters and advocates for an open society fail to highlight the dangers and call for a shutdown, the government’s current and authoritarian approach could allow free press. ‘to be silenced.
Duncan Campbell is a former Guardian reporter. The second Duncan Campbell is the author of the 2017 Registry article mentioned above and an investigative journalist specializing in civil liberties and surveillance, and was charged at the 1978 trial.