The National Union of Journalists (NUJ) has condemned legislation proposed by home secretary Priti Patel. Her plan could see journalists, whistleblowers, and political activists jailed for several years. Should Patel have her way, it would affect every media outlet in the UK, seriously curbing press freedom.
However, her proposal may prove technically unworkable.
The proposal
Patel’s proposal, Legislation to Counter State Threats (Hostile State Activity), is partly in response to the Law Commission document Protection of Official Data.
BBC journalist John Simpson tweeted that the proposed legislation would basically criminalise journalists:
Priti Patel’s Home Office wants to make it a crime for journalists to embarrass the govt by publishing leaked official documents. The maximum penalty would be 14 years in prison. This would put British journalists on a par with foreign spies.
— John Simpson (@JohnSimpsonNews) July 21, 2021
An NUJ statement on Patel’s plan agrees:
Existing legislation distinguishes provisions and penalties between those who leak or whistleblow, those who receive leaked information, and foreign spies. The government proposes to eliminate or blur these distinctions.
WikiLeaks factor
In 2017, the Open Rights Group (ORG) argued that the catalyst behind this proposed legislation was WikiLeaks‘ publication of leaked documents, as well the uploading of NSA leaked documents by Edward Snowden.
More broadly, in an article in the Guardian it’s claimed the proposed legislation would:
have the effect of deterring sources, editors and reporters, making them potentially subject to uncontrolled official bans not approved by a court, and punished much more severely if they do not comply. …
the new laws would, if passed, ensnare journalists and sources whose job is reporting “unauthorised disclosures” that are in the public interest.
Early warnings
In a 2017 article in the Register, Duncan Campbell pointed out that if the proposal becomes law:
Sentences would apply even if – like Edward Snowden or Chelsea Manning – the leaker was not British, or in Britain, or was intent on acting in the public interest.
In July 2020, The Canary also warned of the proposal, quoting a News Media Association comment on how the proposed legislation would:
extend and then entrench official secrecy. It would be conducive to official cover up. It would deter, prevent and punish investigation and disclosure of wrongdoing and matters of legitimate public interest… [and have a] chilling effect on investigative journalism… [It would also] make it easier for the Government to prosecute anyone involved in obtaining, gathering and disclosing information, even if no damage were caused, and irrespective of the public interest… The regime could lead to increased use of state surveillance powers against the media under the guise of suspected media involvement in offences, posing a threat to confidential sources and whistle-blowers.
Campbell poignantly adds that:
If the proposed law had been in force in 2013, the Cabinet Office could have thrown [Guardian editor Alan] Rusbridger in prison simply for handling copies of documents Edward Snowden passed to his reporters.
“Onward disclosure”
Writing for Declassified UK, investigative journalist Richard Norton-Taylor states how Patel’s proposals make it clear that:
the government wants to claim a journalist responsible for an “onward disclosure” — a publication in a newspaper or website, for example — would be as liable and on a par in criminal law with a primary source, such as a whistleblower in a government agency.
By “onward disclosure” Patel simply means publishing.
Worryingly, Norton-Taylor adds:
Leakers and journalists could be charged with disclosing information that was merely “capable” of being damaging. They could be sent to jail on a hypothesis.
The Home Office makes clear it wants to prevent sensitive information from being disclosed in court. One way of doing this would be to lower the burden of proof prosecutors would need to secure a conviction. A jury would not need to know evidence of how damaging a disclosure of information was. Mere claims by government lawyers would be enough to convict.
Implications
Patel’s proposed legislation is the sort that’s more associated with authoritarian regimes. And it’s a sign of just how fearful the Tory government is of being exposed for wrongdoing. It would mean no more leaks published in UK media. And not just in the mainstream press, but also by independent media such as The Canary. UK secure drop facilities, which provide anonymity to whistleblowers, would become redundant.
As previously commented by The Canary, the proposed legislation would basically see:
the end of press freedom in the UK. The government can hide whatever it likes, transparency will be meaningless and whistleblowing likely to become a thing of the past. And anyone who flouts the law and gets caught could face years in prison, just as the WikiLeaks founder is currently facing the prospect of decades‘ imprisonment in the US for publishing leaks, such as war crimes.
Unworkable
However, Patel’s proposal also reveals a degree of ignorance of how publishing works globally. For example, ORG commented how:
The proposals to expand the offences to non British nationals acting outside the UK, as long as there is a “sufficient link” are difficult to establish and even harder to enforce.
So let’s take a scenario.
A UK citizen leaks documents that appear to prove the British government has committed wrongdoings. The whistleblower uploads the documents anonymously to a secure drop facility held by a media outlet in a country other than the UK. The documents are subsequently published by that outlet on its website. The outlet also shares links to the documents via its Twitter account and its followers retweet the tweet. Thus, the cat is well and truly out of the bag, and there’s nothing the UK government can do about it.
Of course, this method is not perfect as not everyone is on social media and able to see the documents. But it would still make these documents far more accessible.
Meanwhile, there are guides available on how journalists can protect themselves from such draconian legislation as that proposed by Patel. Here is one, commissioned by the Centre for Investigative Journalism.
Featured image via YouTube
By Tom Coburg
This post was originally published on The Canary.
