New law could see journalists jailed as spies for causing the government embarrassment

By Alma Fabiani

Published Jul 21, 2021 at 12:52 PM

Reading time: 3 minutes

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Less than a week ago, shortly after CCTV footage of Matt Hancock making out with his secret girlfriend was released by The Sun, officials from the UK’s data watchdog the Information Commissioner’s Office raided two homes and seized computers as part of an investigation into the leak. Fast forward to yesterday, 20 July, when it was revealed that journalists’ investigations—into matters of public interest—could be treated as spying under planned reforms to the UK’s Official Secrets Act.

If you’re not sure what that means exactly, let me clarify: Priti Patel, along with the rest of the UK government, is currently working on one of the biggest attacks on press freedom. Why? Because instead of not doing the ‘embarrassing’ things that are exposed through journalism, they’d much prefer to keep on doing them behind closed doors while making sure they don’t get out in the open.

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And how exactly can they stop journalists from disclosing their dirty little secrets? By threatening to treat them in the same way as those who commit espionage offences. Oh, and did I mention that those journalists could be jailed for up to 14 years? Welcome to George Orwell’s 1984 sequel, 2021. Let’s crack on, shall we?

For a while now, the Home Office has been working on implementing harsher and more extensive secrecy laws that would have the effect of deterring sources, editors and reporters by making them potentially subject to uncontrolled official bans not approved by a court, and punished much more severely if they do not comply. About two months ago, while most of us were busy discussing other hair-raising news, a government consultation went under the radar. “Although portrayed as countering hostile activity by state actors, the new laws would, if passed, ensnare journalists and sources whose job is reporting ‘unauthorised disclosures’ that are in the public interest,” writes The Guardian.

As soon as this consultation that claimed that press disclosures can be worse than spying, because the work of a foreign spy “will often only be to the benefit of a single state or actor” popped up, guess who endorsed it in no time? Priti Patel, obviously.

Calling for parliament to consider “increased maximum sentences,” the Home Office is basically trying to prove that there is no distinction in severity “between espionage and the most serious unauthorised disclosures,” including “onward disclosure” in the press. It claims that journalism could even create “far more serious damage” than a spy. Yet the 66-page document does not mention “journalism” once, and refers only to “onward disclosure… without authorisation.” Same thing, but hidden.

What you probably didn’t know is that the whole process behind these new laws actually began in 2016 when the Law Commission—a statutory body that reviews the law in England and Wales—started work on “protecting official data,” claiming reforms were needed “to bring the law into the 21st century.” Changes were, supposedly, justified because of the ability of “hostile states” to conduct cyber-attacks and because the potential impact of spying and leaks had increased. That doesn’t sound too bad, but wait—it gets worse.

Initial proposals by the commission in 2017 did not attract much attention until an article in The Register pointed out that the proposals would put leaking and whistleblowing in the same category as spying for foreign powers—and that UK leakers and journalists could face the same extended jail sentences as foreign agents. Sentences would apply even if the leaker was not British, nor in Britain, or was acting in the public interest. After the article was published, an avalanche of criticism from NGOs, the press and media organisations followed. As a result, public consultation was extended.

Slowed further by the impact of the COVID-19 pandemic, the Law Commission published revised proposals last autumn, which have now just been scrapped by the Home Office as not “the right balance in this area.” The introduction of a public interest defence available to anyone, including journalists, was discarded. Instead, here’s what it has to propose.

The idea that any leaking of the government’s private matters could be in the public interest should not be possible, it states. Forget about whistleblower protection, and even forget about the argument that they acted in the public interest. One of the main changes is to widen the scope for prosecutions. “For public servants,” according to proposals, “offences 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 the disclosure would cause damage.” I bet Dominic Cummings is shaking in his boots right about now.

“Maximum prison sentences that could be imposed on publishers or sources—currently two years under the Official Secrets Act for unauthorised disclosures—would be multiplied to an unspecified higher level,” adds The Guardian. Other publications mention that the Home Office looked at whether sentences should be increased from two to a new maximum of 14 years, just so you can get an idea of how long we’re talking about here.

In the consultation document, 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.”

While it remains partly unclear exactly how the laws will allow the UK government to prosecute individuals behind ‘smaller leaks’ such as Matt Hancock’s affair—would that qualify as an unnecessary embarrassment for them or one that isn’t in the public interest?—it’s crucial we highlight the fact that simply threatening to jail whistleblowers and journalists is an attack on freedom of speech regardless.

Responses to the new proposals are being sought by 22 July. If editors, journalists and advocates of freedom of speech and press do not highlight the danger these represent, we might truly see the UK turn into a 1984-esque nation.

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