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September 8, 2017updated 11 Sep 2017 12:43pm

Guardian legal chief Gill Phillips on the chilling effect of Law Commission plan to ‘criminalise public interest journalism’

By Gill Phillips

This week The Guardian published leaked Brexit proposals from the Government which set out strict new plans for a “British workers first” immigration policy. Here Guardian head of legal services Gill Phillips warns of the chilling effect on journalism of Law Commission proposals to possibly criminalise such leaks

Recent proposals by the Law Commission to reform the Official Secret Acts are the latest attempt to impose greater state control of information about the operation of government.

If accepted by the Government, they would have a chilling effect on public interest journalism, further criminalising the act of leaking government documents even when in the public interest, and making illegal the role of journalists in reporting on those documents.

The Law Commission’s proposals would mean it would become much easier to prosecute, and ultimately imprison, journalists who report on national security leaks. A prison term could follow even if the reporting was in the public interest, and no damage was caused to individuals, organisations or society at large.

Their plans could also mean an expansion of the type of information covered by Official Secrets laws – which could potentially include information about the UK’s economic activities like the Brexit negotiations.

The proposals appear, in part, to be a response to the release of classified information from both sides of the Atlantic by the NSA contractor, Edward Snowden. But the suggested changes take the wrong lessons from the Snowden revelations, and ignore the reality of the connected, global information environment in which we now live.

The Guardian always believed strongly in the public interest case for the responsible publication of key excerpts from the Snowden files.  We took great care before a single word was ever put on a page to ensure that live operations, and the personnel who undertake them, were not compromised in any published stories.

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What was revealed was a shadow technology state prying into the private data of individuals, and secret collaboration between some of the world’s biggest technology companies and the American and British governments.

We now know the true reach of the capabilities of the intelligence agencies, which allows us to hold them to account far more readily. In the midst of political upheaval in the US, the election of Donald Trump and the divisive politics that followed, that must surely be a good thing.

In the UK, although there is much to criticise in the Investigatory Powers Act, the Government and the security services have at least come clean about the various methods they can use to gather and hold data on citizens.

By further criminalising the process of public interest journalism, the Law Commission’s proposals risk incentivising whistleblowers to bypass responsible journalists altogether, and to anonymously self-publish data leaks online.

What has emerged as a consistent theme over recent years is an underlying ministerial desire to exercise greater control over government information, and to frustrate the objective of public interest journalism.

As with last year’s review of freedom of information legislation, ministers increasing equate “open government” with a commitment to the publication of “open data” – with the terms, contents and timing chosen by ministers and civil servants themselves.

It is disingenuous to compare the publication of data, tightly defined within parameters set by the government, with a true commitment to public transparency and open government.

A Guardian FoI request found that the Law Commission consulted with the Cabinet Office during at least 17 separate meetings, and there were around 25 meetings with government departments, both ministerial and non-ministerial.

By contrast, there was scant and cursory consultation with those representing journalists or interested in upholding the right of freedom of expression. Media representatives were invited to just one informal meeting about broad principles.

While the Commission is right to update terminology and maintain appropriate criminal sanctions for those who disclose official information that is shown to cause real harm, where there is no public interest in the disclosure, the current proposals would significantly broaden the basis on which journalists can be prosecuted.

For example, the current test of “damaging” would be expanded to apply to leaks that are merely “capable of being damaging”.

In the absence of any sort of public interest defence, these proposals would put important public interest stories at risk.  Stories such as the Guardian’s investigation of Metropolitan Police undercover unit that infiltrated campaign groups, or public interest issues relating to the Brexit negotiations, might become much harder to bring to public attention. But perhaps that is the intention.

One of the most important reasons for protecting whistleblowers and public interest journalism is that they enable the British public to hold the government of the day to account, by asking questions that it does not want to answer.

We must oppose these proposed changes that would reduce the ability of journalism to hold executive power to account, and criminalise the role of news organisations to ensure that everyone in our democracy knows about actions taken in their name.

The Law Commission is currently considering the responses to its consultation of changing the Official Secrets Act. The consultation closed on 2 May and final recommendations will be revealed “in due course.”

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