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UK journalists could be jailed like spies under proposed Official Secrets Act changes By Charlotte Tobitt July 20, 2021

Journalists could be treated like spies for reporting on matters of public interest under planned reforms to the UK’s  Official Secrets Act.

The move has caused alarm at a time when press freedom is seen as being under attack in the UK following the raid by the Information Commissioner to find The Sun’s Matt Hancock-scoop source. Yesterday, it was revealed that foreign governments are targeting UK journalists with mobile phone spyware.

The Government said the reform was needed as the existing acts, with the last update in 1989, are no longer enough to fight the “discernible and very real threat posed by state threats”.

However the Home Office has insisted it is not putting journalists at risk of being treated like spies and insisted they will “remain free to hold the government to account”.

The Home Office consultation (which closes on Thursday 22 July) suggests journalists should be treated in the same way as those who leak information and those committing espionage offences.

It also looked at whether maximum sentences should be increased from two to 14 years.

The Home Office said it does “not consider that there is necessarily a distinction in severity between espionage and the most serious unauthorised disclosures, in the same way that there was in 1989”.

“Although there are differences in the mechanics of and motivations behind espionage and unauthorised disclosure offences, there are cases where an unauthorised disclosure may be as or more serious, in terms of intent and/or damage,” it said.

“For example, documents made available online can now be accessed and utilised by a wide range of hostile actors simultaneously, whereas espionage will often only be to the benefit of a single state or actor.”

The Law Commission had said last year in its review of the legislation that it was “important to retain” the distinction between espionage and unauthorised disclosure.

No public interest defence

In September last year, following campaigning by the National Union of Journalists and other groups, the Law Commission recommended the introduction of a public interest defence available to anyone, including journalists, charged with an unauthorised disclosure under the Official Secrets Act 1989. It also suggested establishing an independent statutory commissioner to investigate concerns of wrongdoing from whistle-blowers.

The Home Office has not taken these proposals forward, although it said it would consider them “in further detail”.

In the consultation document, the Government said it believed they could “undermine our efforts to prevent damaging unauthorised disclosures, which would not be in the public interest”.

It said safeguards already exist to allow whistle-blowers to report concerns without leaking material, and that any decision to prosecute is subject to the public interest test by the Crown Prosecution Service.

It added: “Press freedom is an integral part of the UK’s democratic processes, as is the ability for individuals to whistleblow and hold organisations to account, when there are serious allegations of wrongdoing.

“However, a balance must be struck with safeguarding official information (including national security information), where its compromise could harm the UK, its citizens or interests, given the unlawful disclosure and/or subsequent publishing of sensitive documents can lead to serious harm in many cases. We are not convinced that the Law Commission’s recommendations strike the right balance in this area.”

The Government goes on to claim that anyone deciding whether to put information in the public domain, including whistleblowers in Government or journalists who may have been handed information, would “rarely (if ever) be able to accurately judge whether the public interest in disclosing the information outweighs the risks against disclosure”.

“Even if the case is subsequently made that the disclosure was not in the public interest, and the person who published the information has committed a criminal offence, this does not undo the potential damage caused by the disclosure.”

Alex Bailin QC called for such a public interest defence in The Times in January, arguing that without one the UK was “almost certainly” in breach of the European Convention on Human Rights.

“Responsible, conscientious people must not be criminalised for exposing wrongdoing,” he wrote.

Another threat to journalists is the proposal to provide proof or likelihood of damage as the result of an unauthorised disclosure – instead, the defendant would only need to have realised the publication was capable of causing damage.

The Government said the need for proof of damage was a “barrier to potential prosecutions”.

Watered down protections

The NUJ also warned that the Official Secrets Act reform could water down protections for “special procedure material”, which includes journalistic material, under the Police and Criminal Evidence Act.

It appears that the Government could want such protections to be invalid under Official Secrets Act searches and for the threshold for authorising such searches to be lower.

The NUJ said the recent case of Belfast-based journalists Trevor Birney and Barry McCaffrey, whose homes and offices were raided by police with a search warrant a judge later ruled was obtained in a hearing that fell “woefully short of the standard required”, was a “clear demonstration of how tempting it can be for police to use Official Secrets provisions on the flimsiest of grounds”.

NUJ general secretary Michelle Stanistreet said the union was stepping up its campaigning “to defend journalists and journalism that operates in the public interest.

“We remain fundamentally opposed to any moves by the state that would make it harder to report on national security or poses harsher penalties for journalists, their sources and whistleblowers.”

Former Guardian security editor Richard Norton-Taylor has said the proposals “pose far-reaching threats to the media and the public’s right to know”.

Maurice Frankel, director of the Freedom of Information Campaign, told Norton-Taylor for Declassified UK the plans will have “enormous consequences” for journalists and were “disproportionate and oppressive”.

Frankel said they were “presumably intended to ensure that officials and journalists are too terrified of the consequences to risk making or publishing unauthorised disclosures about intelligence, defence, international relations or law enforcement”.

Independent columnist Patrick Cockburn said that if the Government’s proposals are implemented “then Britain will be well on the way to joining those countries where the disclosure of any information damaging to the government is punishable”.

“Offences range from revealing war crimes to disclosing trivial failures,” he said.

“The Indian government would like to silence anybody revealing the true death toll in the Covid-19 epidemic; Turkey has jailed journalists for writing that it had supplied weapons to al-Qaeda-type organisations; the Egyptian government once stopped an academic from publishing a paper showing that more Egyptian farmers were going blind because of the spread of a waterborne parasite.

“Britain does not have the same tradition of authoritarian censorship, but freedom of expression here is more fragile than it looks…”

Press freedom ‘will be protected’

A Home Office spokesperson said: “Freedom of press is an integral part of the UK’s democratic processes and the government is committed to protecting the rights and values that we hold so dear.

“It is wrong to claim the proposals will put journalists at risk of being treated like spies and they will, rightly, remain free to hold the government to account.

“We will introduce new legislation so security services and law enforcement agencies can tackle evolving state threats and protect sensitive data. However, this will be balanced to protect press freedom and the ability for whistleblowers to hold organisations to account when there are serious allegations of wrongdoing.”

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