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February 18, 2019updated 30 Sep 2022 7:30am

Improved counter-terror and production orders bills become law but press freedom concerns remain

By Charlotte Tobitt

Two bills with the potential to impact press freedom in the UK have become law despite fears from campaigners and MPs that their journalistic safeguards “simply do not go far enough”.

The Counter-Terrorism and Border Security Act and Crime (Overseas Production Orders) Act were both given royal assent on Tuesday last week after months of lobbying from press campaigners.

The Crime (Overseas Production Orders) Act will enable police and prosecutors to more easily access electronic data held by overseas service providers – such as social media and email companies – where an international agreement is in place.

A data access agreement with the US, where many of the biggest communications service providers are based, is already being negotiated.

The bill saw amendments added at its third reading in the Commons on 30 January to guarantee that journalists must be notified when their data is sought, giving them or their media organisation the opportunity to challenge the order in court.

The National Union of Journalists said this was a positive change because it brings the new legislation further in line with the Police and Criminal Evidence Act 1984.

Under PACE a judge must be consulted over attempts to grab journalistic material, which can be contested by news organisations in court. The new act previously only contained a requirement to notify organisations when something is deemed confidential.

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Conservative MP Huw Merriman, chairman of the all-party BBC group, said the amendments made the bill “completely consistent with the provisions under PACE and will help the administration of justice, as they may mean that many applications do not need to be spoken against”.

However other journalistic safeguards, such as an amendment backed by Labour and the SNP to ensure production orders would only be agreed with countries that mirror the UK’s own press freedom safeguards, were not voted through.

Security Minister Ben Wallace said the bill was “simply not the right place to mandate what is a right and laudable protection for journalists and their data”.

But SNP MP Gavin Newlands told the Commons the journalistic protections in the act “simply do not go far enough”.

An NUJ spokesperson said: “We are disappointed that there aren’t more robust safeguards but we welcome that journalists will be notified of an application.”

Rebecca Vincent, UK bureau director for Reporters Without Borders (Reporters Sans Frontieres), said the addition of a notification for journalists was a minor improvement but that broader concerns remained.

“It is worrying that so little attention was paid to the press freedom implications of the Crime (Overseas Production Orders) Act, which threatens the ability of journalists to secure their data and guarantee source protection.

“This act and other moves, such as a new proposal from GCHQ that would force an encryption backdoor, could make it increasingly difficult to pursue public interest investigative reporting in the UK.”

A Home Office spokesperson said last month: “The tools available to our law enforcement must be fit for the online world in which we live. 99 per cent of data linked to child abuse is held overseas and the faster we get it the quicker we can stop abusers.

“This legislation – where an international data access agreement is in place – would give police and prosecutors quicker and easier access to vital electronic data held outside the UK.

“We have listened to concerns and made sure that journalists will be informed in advance of an application being made to the court. This will give them the opportunity to make representations to the judge at the time of the application.

“No one should be above the law but we have recognised journalists’ concerns by tabling a range of amendments.”

Campaigners had also lobbied MPs to introduce more journalistic safeguards in the Counter-Terrorism and Border Security Act, which also became law last week.

The legislation updates existing counter-terrorism legislation to reflect the digital age, including the way in which people view content online, and is aimed at tackling suspected terrorist activity more quickly.

However, Vincent said it was “the latest in a growing body of legislation that could have perhaps unintended – but very serious – consequences for journalists, and threatens press freedom”.

Following lobbying by groups including the News Media Association, journalistic defences have been added to clauses which make it a crime to view terrorist material online or travel to an area designated as a terrorist threat to the UK.

But concerns remain over new powers allowing officers to stop, search and detain anyone at the UK border, without grounds for suspicion, to determine if they are a threat to national security.

The act contains some safeguards for the press, but only in relation to “confidential” journalistic material.

Home Office Minister Baroness Susan Williams agreed to look again at protections for journalistic material last month, noting the “need for strong protections for journalistic material that is not confidential”.

She said she would ask officials to consider “if any additional protections may be introduced” through Schedule 3 of the border security codes of practice, which will be subject to a public consultation before they come into force.

Vincent said: “The UK’s record on press freedom, at 40th out of 180 countries on Reporters Without Borders’ World Press Freedom Index, is not what it should be, and it is often steps like this taken in the name of national security that contribute to the erosion of press freedom.

“We must do better at ensuring that respect for press freedom and broader human rights is at the core of both law and practice in the UK.”

Picture: Pixabay/Skeeze

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