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Reformed Secrecy Laws Could Frame Journalism as Spying

Jonny Rogers reports on proposed changes to secrecy laws that could have severe consequences for media and journalism in the UK.

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The Law Commission have proposed the strengthening of espionage laws to align leaking and whistleblowing with previous legislation for spying on behalf of foreign powers in a move that many fear would limit the ability of journalists to criticise the Government.

The proposed changes are said to improve legislation to better reflect “the nature and scale of modern threats”, having last been updated in 1989. Over the past few decades, the exponential development of internet and communications technology – and their centrality to our lives – have changed how we share, receive and store information. Accordingly, the nature of domestic and international conflict has evolved; hypothetically, cyber-attacks on a few servers could bring about mass disruption to entire economies.

However, while there are legitimate reasons to maintain the integrity of the UK’s cyberinfrastructure, state control over the distribution of information through digital services also plays a central role in silencing opposition. In Belarus last year, for example, President Alexander Lukashenko shut down the internet to prevent citizens from criticising his administration and arranging protests.

The problem, however, is even closer to home. In 2018, two journalists were arrested for suspected theft of police documents on a massacre in Loughinisland during the Troubles, in which six men were murdered while watching the 1994 World Cup. Thankfully, however, the journalists reached a settlement with the Belfast High Court last year.

Reforms to the Official Secrets Act

Over the past few years, there have been numerous attempts to review the Official Secrets Act. In 2017, a consultation paper was published to “ensure that the law is keeping pace with the challenges of the 21st century”. This publication received much attention, with an article in The Register claiming that journalists could be jailed as spies.

Alan Rusbridger, a former editor-in-chief for The Guardian who was involved in the Edward Snowden revelations, said, of the 2017 proposals:

"It is alarming that such a far-reaching proposed reform of laws which could be used to jail whistle-blowers and journalists should have been drafted without any adequate consultation with free speech organisations."

Published in September last year, the most recent recommendations from Law Commission would provide the following changes:

  • The ‘archaic language’ of the Official Secrets Act 1989 would be updated, including to replace ‘enemy’ with ‘foreign power’.

  • Public servants can be prosecuted for leaking information without the requirement of proof that the disclosure actually caused damage; instead, there must be proof that they believed they would cause damage.

  • Anyone could be prosecuted, irrespective of whether they are a British citizen, so long as there is a significant connection between their behaviour and the interests of the UK.

  • A statutory public interest defence would be available for anyone, including for journalists and civilians; if the disclosure serves the public interest, the individual would not be considered guilty. However, what counts as ‘public interest’ would be defined at the Government’s discretion.

  • Public servants and civilians would be able to report concerns of wrongdoing to an independent commissioner.

  • The maximum prison sentence for leaking information would be increased, without a recommendation on what this should be.

Between May and July this year, a consultation on legislation to counter-state threats set out to put the Law Commission’s proposals into practice. In addition, the consultation proposed the creation of a ‘Foreign Influence Registration Scheme’ which would aim to “help combat espionage, interference, and to protect research in sensitive subject areas”, in addition to providing a greater awareness of foreign influence on the UK.

How Have Journalists Responded?

Boris Johnson has said that he does not believe a review of the Official Secrets Act would result in the prosecution of journalists, nor would it limit their ability to carry out investigations. However, the National Union of Journalists have criticised the proposals for ‘blurring the distinction’ between whistleblowing, journalism and spying, for reducing protections for journalistic material in police searches and for rejecting calls for statuary public-interest defence for whistle-blowers.

Writing for The Conversation, Paul Lashmar, a former investigative journalist and author of Spies, Spin and the Fourth Estate, believes that the new legislation “seems more designed to prevent government embarrassment” than maintain national security. He argues that this is just the latest development in a long history of the state suppressing of journalists:

“There is a wealth of historical evidence that demonstrates the UK government and intelligence services’ ingrained tendency to suppress journalism in an effort to cover up its wrongdoing. Indeed, many illegal operations have been exposed only by the collaboration of whistle-blowers and journalists.” – Paul Lashmar, former investigate journalist and author

In a world shaped by the production and distribution of ever-increasing volumes of digital information, journalism plays a central role in monitoring and exposing the issues that really matter. However, media controlled by the market has given us a wealth of clickbait headlines, intentional misinformation and the commodification of private data, resulting in much of the media controlled by the state silencing criticism and preventing conservation. As such, it is in the interests of human rights and our collective security that we maintain the value of a free press that is informed by reason, evidence and the highest standards of moral integrity.


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