Proposals to replace the Official Secrets Act with beefed up legislation could create a “new journalistic ice age” and have been condemned as like something from Stasi-era East Germany.
The Guardian has said it believes the recommendations for new legislation from the Law Comission were prompted by Edward Snowden’s mass leak of information about UK and US government surveillance techniques to the paper.
The Law Commission recommends that the original Official Secrets Act of 1911 should be repealed and replaced with an Espionage Act.
The current legislation was drafted to protect Britain’s secrets from Germany before World War One and states that defendants “engaged in the espionage type conduct, must have intended for it to benefit an enemy”.
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The new proposed law states this offence can be committed by “someone who not only communicates information” but also “by someone
who obtains or gathers information” – i.e. a journalist.
The consultation also suggests that maximum sentences for breaching Official Secrets Act style offences should be increased from two years to 14 years in prison.
The current maximum sentence “does not reflect the relative ease with which individuals may, by digital means, disclose vast amounts of sensitive information”, the Law Commission notes.
The consultation also suggests a broadening of the scope of information covered by secrecy legislation.
It states: “We invite consultees’ views on whether information that relates to the economy ought to be brought within the scope of the legislation. One way to define this category is to specify that it only encompasses information that affects the economic wellbeing of the United Kingdom in so far as it relates to national security.”
This suggests that journalists could be imprisoned for obtaining and publishing information about the Government’s Brexit strategy.
Current legislation states prosecutors must prove “information disclosed damaged or was likely to damage specified interests”.
Again the the Law Commission wants to toughen and broaden this: “We suggest remodelling the offences so that they focus not upon the consequences of the unauthorised disclosure, but upon whether the defendant knew or had reasonable cause to believe the disclosure was capable of causing damage.
“It is the culpability of the defendant in making an unauthorised disclosure being aware of the risk of damage that should be the core of the offence; not whether damage did or did not occur.”
The Law Commission has ruled out including any statutory public interest defence for journalism.
It states: “Such a defence would allow someone to disclose information with potentially very damaging consequences.
“The person making the unauthorised disclosure is not best placed to make decisions about national security and the public interest; the person would not be guaranteed the defence if they did make the disclosure because the jury might subsequently disagree that it was in the public interest and by then the damage has been done.”
The Law Commission suggests whistleblowers should raise concerns in the first instance to an Investigatory Powers Commissioner, rather than a journalist.
The review states: “It is our view that the introduction of a statutory public interest defence solely for journalists could be considered arbitrary, given that there are other professionals who might violate the criminal law in the pursuit of their legitimate activities.”
The Guardian said in a leader column that the Law Commission “proposes powers that would herald a new journalistic ice age”.
“Anyone that published an intelligence- or foreign affairs-related story based on a leak would be open to criminal charges,” the paper said.
“Reporters, as well as the whistleblowers whose stories they tell, would be under threat of sentences of up to 14 years, regardless of the public interest and even if there were no likelihood of damage.”
The Times said in a leader column on the same issue: “There was once another country that considered economic wellbeing and policy as matters of national security, and outsiders who delved too deeply into them punishable as spies.
“It was called East Germany and it was the most oppressive police state in history.
“Cybersecurity is not a matter to be taken lightly and the government is naturally anxious not to jeopardise Brexit negotiations, but neither of these considerations justifies putting legitimate whistleblowers or journalists who publish their information at risk of jail.
“There is no shortage of laws on the statute book with which to punish those who steal or misuse official secrets. But official Britain is already far too fond of secrets and public interest journalism is already under grave legal and commercial threat.
“The Cabinet Office should thank the Law Commission for its ideas, and reject them.”
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