Critics have rallied against new legislation which they say will “compromise press freedom” by making it easier for journalists’ emails to be accessed, putting sources who need to be kept anonymous at risk.
The National Union of Journalists, News Media Association, Reporters Without Borders and a number of press freedom groups have all criticised the Crime (Overseas Production Orders) Bill for lacking basic journalistic safeguards, such as those in the Police and Criminal Evidence Act 1984.
The new bill, due to be debated today, creates a general power for the police to access electronic communications which are stored on overseas servers – such as those belonging to social media companies – for the first time
The NMA said the scope of this would be “far greater than many realise, given the majority of UK citizens’ emails, social media messages and other electronic communications is stored on servers overseas, typically the US”.
The bill would also create a new framework for overseas courts to gain access to UK-based data via reciprocal agreements.
Currently, under PACE, a judge must be consulted over attempts to grab journalistic material, which can be contested by news organisations in court. The new bill only contains a requirement to notify organisations when something is deemed confidential.
A letter jointly signed by eight NGOs including Reporters Without Borders (Reporters Sans Frontieres), Big Brother Watch and Index on Censorship today urged MPs and peers to ensure the new bill “mirrors the existing safeguards in UK production orders as a minimum”.
It added that the bill should “provide at least equivalent levels of protection for freedom of expression and privacy” as PACE, along with a commitment to robust safeguards.
Rebecca Vincent, RSF’s UK bureau director, said: “We are concerned about the press freedom implications of this bill, particularly in light of other moves that could serve to further restrict press freedom in the UK, such as the Counter-Terrorism and Border Security Bill, and a recent proposal by [intelligence department] GCHQ that would force a backdoor into encryption tools.
“Journalists – particularly those doing public interest investigative reporting – must have confidence that their data is secure in order to guarantee source protection and be able to do their jobs.”
The NUJ has met with parliamentarians since September to explain how the draft bill fails to meet the basic safeguards contained within PACE.
The union also pointed out that authorities “already have extensive powers of surveillance” through the Investigatory Powers Act 2016.
NUJ general secretary Michelle Stanistreet said the Government had “repeatedly demonstrated its contempt for journalism and disregard for press freedom” through laws which “undermine and compromise the ability of journalists to carry out their work with integrity and in safety”.
The Counter-Terrorism and Border Security Bill, currently awaiting Royal Assent, was subject to similar criticism, but lobbying from groups including RSF and the NMA, resulted in improvements for journalists.
These include an exemption for journalists from the offence of travelling to an area designated as a terrorist threat to the UK, a defence for journalists from the new offence of viewing terrorist material online, and the right for journalists to be consulted over a decision to copy confidential material seized from them under border powers.
On threats to journalists posed by the Crime (Overseas Production Orders) Bill, Stanistreet said: “This Government has sought to restrict existing freedom of information law, introduced draconian surveillance legislation, tried to make it easier to prosecute journalists by reforming the Official Secrets Act and now it’s pushing legislation that disregards the few legal protections there are for journalistic material and sources.
“This legislation paves the way for the Home Office to surrender up the content of our electronic communications to foreign governments. So let us be in no doubt – this government is orchestrating a deliberately hostile legal environment for all journalists.”
The NMA has also briefed MPs, setting out its four main concerns about the bill as follows:
- “There is no requirement for a journalist or news organisation to be notified and heard at the time of the application
- “There is no requirement for the authorities applying for an order to persuade the judge that accessing the journalistic information is relevant to the investigation and a last resort
- “Information from confidential sources can be accessed in investigations into all but the most trivial offences, with no duty on the court even to notify the journalist
- “There is nothing to stop the UK entering into reciprocal arrangements with countries that have few or no safeguards for press freedom and the protection of sources.”
The Home Office tabled a number of amendments to recognise journalists’ concerns, including one which states a judge must be satisfied the electronic data under application is likely to be relevant evidence, unless it is a terrorism investigation.
A Home Office spokesperson said: “The tools available to our law enforcement must be fit for the online world in which we live. Ninety-nine 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.”
Security Minister Ben Wallace said today he believed the bill struck the right balance between not excluding journalistic material entirely “because I do not believe that anyone should be above the law no matter what their profession”, and giving them “notice that other people would not be given, to allow them to make representations”.
“All the way through this process, even in considering the controversial part of the bill, we should not forget that this is done before a judge. It is not done between officials in two administrations: these orders will be applied for in front of a court and granted by a judge.
“It will be for the law enforcement agencies to satisfy the range of tests and for journalists to make their representations. That will safeguard the process while at the same ensuring that we get data if it is needed to keep us safe.”