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December 6, 2018updated 30 Sep 2022 7:12am

New threats to journalists and sources posed by counter-terror and crime bills going through Parliament, MPs and NMA warn

By Charlotte Tobitt

Two bills currently making their way through Parliament could pose threats to press freedom and the confidentiality of journalists’ sources, MPs and the News Media Association have warned.

The Counter-Terrorism and Border Security Bill and the Crime (Overseas Production Orders) Bill are both facing opposition over their potential to impact existing journalistic protections.

The former proposes creating new offences for viewing terrorist material online and travelling to areas designated as a terrorist threat to the UK.

Peers made a number of improvements to bill in the House of Lords on Monday to create clearer journalistic exemptions for these offences.

Defence Minister Earl Howe said he hoped an amendment introducing a defence for journalistic work would provide “the necessary assurance to those working in the fields of journalism and academia who have a legitimate reason to access terrorist material”.

But he said it “does not provide an absolute and automatic exemption for any person who states that they are a journalist or academic”, adding this “would not be appropriate”.

He noted that, at the bill’s committee stage, peers had “highlighted the difficulties in legislating to differentiate legitimate journalism from that which may be carried out by a person with more nefarious intentions, whether as a cover for their true activities or as a platform to propagate their terrorist views”.

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“The approach we are taking will ensure that juries will be able to make such distinctions in individual cases, based on the particular facts,” he said.

A further amendment added new exemptions for those travelling to designated terrorist areas for journalistic purposes. Earl Howe said it would provide “significantly greater assurance” to legitimate travellers.

It was previously feared that the bill could deter journalists from travelling to certain countries over concerns they might be prosecuted for doing so.

In support of the amendments, Earl Atlee said: “When we are trying to convince people like President Erdogan of Turkey not to persecute his journalists, it would be a complete disaster if we accidentally arrested a legitimate journalist in the UK.”

‘Draconian powers’

The News Media Association welcomed the amendments but said it was “still concerned about other aspects of the [Counter-Terrorism] bill, such as the draconian powers for border officials to stop, question and seize property from people entering and leaving the country”.

“These powers can be exercised without reasonable suspicion and at a threshold below the prevention of illegal activity – posing a threat to journalists’ sources,” the NMA, which represents the news industry, added.

“We recommend amending the bill to prohibit examining officers from viewing confidential journalistic material prior to its being viewed and assessed by the Investigatory Powers Commissioner, in consultation with the affected parties.

“In urgent cases, whatever expedited process is put in place must not permit the access and use of confidential material prior to review by the IPC.

“We also recommend that the safeguards of prior independent oversight and inter partes hearings are applied to all journalistic material seized under these powers, mirroring the long-standing prohibition on warrantless searches of journalists set out in the Police and Criminal Evidence Act 1984 (PACE).”

Risk to protections for overseas journalists

The NMA also raised concerns about the production order bill, which had its second reading in the House of Commons on Monday.

The bill is designed to strengthen UK law enforcement agencies’ powers to seize information from service providers based outside the country.

Before the debate, an NMA spokesperson told Press Gazette: “This bill drives a coach and horses through one of the UK’s most fundamental safeguard for press freedom, namely that if police want to access journalistic material, they need to apply to a court, which, crucially, notifies the journalist.

“Under these provisions, journalists whose information is stored electronically overseas will be denied that protection. Even where confidential information is being sought, there is no duty to alert the journalist.

“Equally worrying is that the Government intends to grant overseas law enforcement agencies the right to access journalistic material stored in the UK without any checks or oversight at the UK end.

“Under such a regime, journalists will not be able to offer sources any meaningful guarantee of anonymity.”

A Labour amendment in the House of Lords to add journalistic safeguards was voted down with 205 members against and 200 in favour last month.

A National Union of Journalists spokesperson told Press Gazette at the time that they were “disappointed that the safeguards for journalism in the public interest were not agreed on” and they would continue to press for improvements.

On Monday, Labour MP Nick Thomas-Symonds raised concerns that currently, under PACE, notice is required in all applications for journalistic material, whereas the new bill only contains a requirement to notify organisations when something is deemed confidential.

He said: “An application for non-confidential material – for example, where a journalist made a documentary and had some notes – often facilitates a negotiation process about what data is appropriate to provide to the authorities and offers the right of the media organisation concerned to oppose it formally.

“The bill’s failure to make provision for a notification to request non-confidential journalistic material is a concern.”

He added that PACE contains conditions which must be met for a court to grant a production order. There must be reasonable grounds for believing the material is likely to be of substantial value to an investigation, disclosure must be in the public interest, and there must be reasonable grounds for believing the material is likely to be relevant evidence.

The new bill does not include the final “relevant evidence” test and Labour will pursue further safeguards at committee stage, he said.

SNP MP Gavin Newlands also raised concerns about a lack of proper safeguards for journalistic material, adding that he hopes these measures can be strengthened.

“We believe that the provisions in the bill are inadequate in protecting confidential journalistic material,” he said. “This could threaten the pursuit of journalistic inquiry and undermine the democratic institution of a free press.

“We are not alone in this, as the BBC has also raised concerns.”

Newlands agreed that the new requirements for giving notice to a journalist for an application create “a significantly reduced opportunity” for them to “engage in arguments about what is, and is not, suitable for disclosure”.

This removes a journalist’s opportunity to make submissions on the issues that this gives rise to in the context of their work, he added.

According to Newlands, the BBC wants the bill to require that notice is given in all applications for journalistic material, not just in those involving confidential material.

It also wants to ensure that the evidential value test mirrors the current law in both terrorism and non-terrorism cases, that confidential journalistic material is protected (as under the current law for domestic applications) and that the Secretary of State can enter into reciprocal arrangements only with countries that provide at least as much protection.

Ed Davey added that the Liberal Democrats are also concerned about the bill’s potential to “undermine protections for the freedom of the press”.

In response, Security Minister Ben Wallace said he would “give substantial consideration” to the suggestions put forward.

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