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July 22, 2021updated 30 Sep 2022 10:28am

Sun, Mail and Rusbridger align as industry unites against Official Secrets Act reforms

By Charlotte Tobitt

Former Guardian editor Alan Rusbridger has argued reforms to the Official Secrets Act would mean a future Edward Snowden-style whistleblower would be forced to avoid mainstream UK publications to spill secrets.

Instead they would avoid fears of stricter sentences for publication in the public interest by sharing information with a foreign title or website or putting it online themselves, he said in his submission to Government.

His stance puts him in rare agreement with the likes of the The Sun as the industry unites against the proposed reforms in fear they could deter whistleblowers from coming forward and have a chilling effect on investigative journalism in the public interest.

[Read more: UK journalists could be jailed like spies under proposed Official Secrets Act changes]

Press Gazette drew attention on Tuesday to Home Office proposals to increase maximum jail sentences for journalists, potentially in line with foreign spies, for publishing leaked information.

The Government also dismissed pleas for a public interest defence and said it could remove the need for an unauthorised disclosure to have caused damage before any prosecution – instead a journalist would only need to have realised publication could have been damaging.

Official Secrets Act reform: Industry plea for public interest defence

The News Media Association, which represents the UK’s news industry, said this could “open the regime up to widespread abuse by those seeking to hide embarrassing truths from public view”.

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It urged the Government to reconsider all the factors that put press freedom at risk, including the replacement of fines with jail sentences as this could “inadvertently worsen the already weak position of journalists and whistle-blowers through harsher sentencing”.

It added that a public interest defence was “absolutely essential”.

The proposals are out for consultation until 11.45pm on Thursday (22 July).

The NMA said it understood the need to adjust the law around state threats as technology and behaviours evolve, but said this must not come at the expense of press freedom. The UK is signed up to the Global Media Freedom Coalition and hosted the first Global Media Freedom Conference in July 2019.

NMA legal policy and regulatory affairs director Sayra Tekin said: “As part of any thriving democracy, the public and a responsible press must be free to shed light on the state’s injustices.

“The proposed measures will deter whistleblowers from coming forward with vital information which the public have a right to know and place a chill on investigative journalism which holds power to account.

“We strongly urge the Government to reconsider these measures and instead work with the industry to place appropriate protections for journalism at the heart of the Official Secrets Act so that freedom of speech is enhanced by the new regime rather than weakened further.”

Alan Rusbridger and Edward Snowden

In his submission to the Government, Guardian editor of 20 years Rusbridger said the changes “could have far-reaching consequences for public debate, open government, whistleblowing and journalism.

“I agree that the present collection of laws is haphazard and out of date, but I would place a different emphasis on the protection of disclosure in the public interest.”

Rusbridger said the prospect of serving a longer jail sentence over the Snowden material “would not in the least have deterred” him.

He went ahead with publication after taking advice and having read a large proportion of the information despite knowing then he could have faced prosecution.

Rusbridger said he was “certain” the material still would have been published if the British government had beforehand launched a prosecution against himself and the Guardian, and pointed out others around the world also had the information.

[Read more: Guardian agreed to ‘symbolic’ destruction of Snowden hard drives after pressure from government]

But he warned that the proposed reforms would effectively give the state power to decide what is in the public interest, if no such defence is enshrined in law.

He said: “The intelligences agencies would have had virtually no power (through conversations or contacts or the DA Notice system) to make representations about possible harm in publication.

“And the next time a whistleblower emerged he/she would certainly avoid any mainstream British publication and either share the material with a foreign publication or website – or else publish it themselves. Is this really the outcome the government or the Law Commission desires?”

Official Secrets Act reform: ‘Licence for a cover-up’

In its leader on Wednesday, The Sun warned such legislation could have prevented it from revealing the CCTV that showed Matt Hancock’s office affair with an aide, leading to his resignation as Health Secretary.

It said the “chilling” proposals were a “licence for a cover-up – of disastrous failures, criminal negligence or career-ending hypocrisies like The Sun’s Matt Hancock revelations”.

[Read more: Media law of Matt Hancock snog scoop which was sleazy, sensational and in the public interest]

“It is sinister enough that the Information Commissioner’s Office carried out raids trying to uncover our source for that exclusive. This law change could outlaw such reporting entirely.

“Some sensitive data must of course remain secret. But if journalists and whistleblowers are jailed over leaks unassailably in the public interest, we are in the grip of oppression.”

Scoops that have changed the way the UK operates for the better, such as the expenses scandal exposed by The Telegraph, which highlighted some of the extraordinary claims made on the taxpayer’s purse by MPs, could have seen reporters jailed under the proposed changes.

Times, Mail and BBC journalists object

Times chief reporter Sean O’Neill warned that the changes would “severely restrict the ability of journalists to report on misconduct and wrongdoing in the police, the military, the NHS, the intelligence services and Whitehall departments”.

Other stories he warned would have been under threat as “damaging, dangerous and criminal” under these laws included substandard military equipment for frontline troops and the recent Times scoop on alleged bullying in the royal household.

“This is a precarious moment for press freedom in Britain,” O’Neill wrote. “If Johnson really believes the media is ‘the lifeblood of our democracy’ and must be able to ‘report the facts without fear or favour’ then he has to rein in his home secretary’s authoritarian instincts.”

Mail columnist Mick Hume said the proposals, if implemented, mean “Britain risks joining the unsavoury club of authoritarian regimes that treat journalists as if they are enemies of the state”.

The idea of giving the whistleblower and journalists years in jail for the Sun’s Hancock scoop was an “affront to democracy”, he said.

BBC journalist John Simpson warned he “probably” would have been prosecuted if the reformed law was in place at the beginning of his career.

‘This isn’t only about journalism’

The Centre for Investigative Journalism said the plans show an overarching public interest defence for investigative reporting in law is “long overdue”.

New York Times UK investigative correspondent Jane Bradley described the proposal as an “incredibly worrying authoritarian move from the UK government — this isn’t only about journalism, it’s about what they don’t want the public to know, even when they have a right to”.

Comparisons were made with Hong Kong, where the pro-democracy newspaper Apple Daily was forced to close last month and eight senior staff members have been arrested in a month.

At the time Foreign Secretary Dominic Raab described the closure as a “chilling blow to freedom of expression” and national security laws were “being used as a tool to curtail freedoms and punish dissent – rather than keep public order”.

In response to the Home Office proposals, City University journalism lecturer and Hongkonger Yuen Chan said: “Let the plight of the press in Hong Kong today be a cautionary tale for the free press everywhere.”

The Campaign for Freedom of Information, which said it would submit a joint response with free expression group Article 19, said: “These plans are disproportionate and oppressive. A whistleblower revealing information, or a journalist or blogger publishing it, would commit an offence even if there was only the remotest possibility of harm.”

The worry spread across journalism specialisms. Harper’s Bazaar royal editor Omid Scobie, who wrote the book Finding Freedom about Prince Harry and Meghan Markle last year, warned: “This is how democracies die,” as he encouraged others to respond to the consultation.

Home Office says press freedom ‘integral’

A Home Office spokesperson said: Freedom of press is an integral part of the UK’s democratic processes and the government is committed to protecting the rights and values that we hold so dear.

“It is wrong to claim the proposals will put journalists at risk of being treated like spies and they will, rightly, remain free to hold the government to account.

“We will introduce new legislation so security services and law enforcement agencies can tackle evolving state threats and protect sensitive data. However, this will be balanced to protect press freedom and the ability for whistleblowers to hold organisations to account when there are serious allegations of wrongdoing.”

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