Journalists in Britain are becoming increasingly alarmed by the government's apparent determination to prevent them from fulfilling their mission to hold power to account. The latest manifestation of this assault on civil liberties is the so-called Espionage Act. If passed by parliament, it could lead to journalists who obtain leaked information, along with the whistle blowers who provide it to them, serving lengthy prison sentences.
In effect, it would equate journalists with spies, and its threat to press freedom could not be more stark. It would not so much chill investigative journalism as freeze it altogether.
The proposal is contained in a consultation paper, "Protection of Official Data," which was drawn up by the Law Commission. Headed by a senior judge, the commission is ostensibly independent of government. Its function is to review laws and recommend reforms to ensure they are fairer and more modern.
But fairness is hardly evident in the proposed law. Its implications for the press were first highlighted in independent news website The Register by veteran journalist Duncan Campbell, who specializes in investigating the U.K. security services.
At face value, the Law Commission's intention was sensible enough. It seeks to update archaic secrets laws originally enacted to prevent the unauthorized disclosure of government information prior to World War I.
Many peacetime prosecutions under those acts have proved controversial, not least when levelled against Campbell himself. (He was one of three men convicted in the ABC trial in 1978 for either "communicating" or receiving so-called "classified information"). However, the commission's proposed reforms considerably strengthen restrictions on journalistic inquiry.
According to the paper, 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. Moreover, it says 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.
As Campbell pointed out in his Register article, if the Espionage Act existed in 2013, it would have criminalized former editor-in-chief of The Guardian Alan Rusbridger, and members of his staff, for handling copies of documents leaked by NSA whistleblower Edward Snowden.
Rusbridger, who is now head of the University of Oxford's Lady Margaret Hall, has registered his alarm at the proposed law, telling The Register it has been "drafted without any adequate consultation with free speech organizations." [EDITOR'S NOTE: Rusbridger is a member of CPJ's board.]
The Guardian's former investigations editor, David Leigh, also criticized the plan "It would," he wrote to the Law Commission, "have an indefensible chilling effect on free speech" and "it will open the way to the criminalization of bona fide journalists for allegedly 'spying'".
Their concerns heralded a chorus of criticism from human rights bodies, civil liberties groups, former whistle-blowers, and many lawmakers. One critic quoted by The Guardian referred to it as a law better suited to a "banana-republic dictatorship" and a sign of an "increasingly unfree society."
In response, both Theresa's May's government and the Law Commission stressed that it was an early draft of the proposed law change. Then the commission followed up by extending the public consultation period by a further month, setting a deadline of May 3.
One of the commissioners, David Ormerod, a professor of criminal justice at University College London, argued that the proposals included greater safeguards for whistle-blowers, adding, "No final recommendations have been made... and we want as many people as possible to be able to have their say." An unnamed government source quoted by The Guardian said that the proposed prison terms had been taken out of context. But the context, and the political climate, point significantly toward the arguments of those of us who believe the threats to freedom of the press in Britain are very real.
Last year, parliament passed into law the Investigatory Powers Act, nicknamed the Snoopers' Charter, with the specific aim of extending the potency of the intelligence services by allowing the interception of communications and communications data. Its critics described it as "the most extreme surveillance law in UK history" and The Independent said it placed Britain "under some of the widest-ranging spying powers ever seen." The law emanated from the Home Office at a time when May was Home Secretary. Now prime minister, her government possesses the power to monitor, intercept and store communications data gleaned from tens of millions of citizens.
Journalists opposed the law on the grounds that it enables the security services and the police to discover the sources of their stories. News outlets have already reported several instances of authorities using the law's previous incarnation, the Regulation of Investigatory Powers Act, to hack into reporters' cell phones to find out how they were obtaining stories. A Metropolitan Police report revealed the force obtained phone records from the political editor at The Sun; Kent county police obtained phone records for a Mail on Sunday journalist and his source in 2012, despite a judge ruling that the source could remain confidential; and Cleveland police were forced to apologize earlier this year after unlawfully accessing phone records of two Northern Echo reporters.
The debilitating effect of such intrusion is obvious: sources will be too scared to communicate with journalists if they cannot speak to them in confidence.
The Espionage Act would add to authorities' increased surveillance powers. As The Times of London reported, among its proposed provisions is to criminalize the disclosure of information that might "jeopardize the country's economic well-being or damage international relations." In other words, it is not overly far-fetched to imagine that leaks about the U.K.'s sensitive Brexit negotiations with the European Union could land both journalists and their sources in prison for undermining the nation's "economic well-being."
The government will, of course, emphasize that the main reason for introducing the law is to combat terrorism. No sensible journalist would wish to oppose measures designed to protect the public. However, the Espionage Act in its current form has too few checks and balances to protect journalists as they go about their essential work on behalf of the public. At risk are the hard-won rights that have long been the foundation of Britain's democracy.
- Comments on the public consultation document can be registered here.