After the outrage caused by the revelation that UK police have spied on the phone records of law-abiding journalists late last year, action was promised by Home Secretary Theresa May.
Most politicians seemed to agree that it was a bad thing for our democracy and our society that media sources could be exposed in this way.
- September 17, 2019
- July 17, 2019
- April 4, 2019
The result is a new Acquisition and Disclosure of Communications Data Draft Code of Practice which will have the force of law when finalised and approved by Parliament.
The code wilfully ignores the well established principle of UK law that there is an overriding public interest in protecting journalistic sources.
It says that journalists’ phone records (so who has called/texted you and when) are NOT privileged information.
And it makes clear that law enforcement agencies can continue to approve phone records grabs of journalists themselves, as long as they make a note of having done so.
The consultation on the new code closes at 11.45pm on 20 January.
Press Gazette’s position is that a judge, rather than a policeman, is best placed to balance whether the public interest is best served by the state monitoring a journalist's phone records.
We think the existing controls under the Police and Criminal Evidence Act, which allow media organisations to argue in court against police requests for journalistic material, should also apply to RIPA telecoms requests.
So far more than 1,400 journalists and others have signed Press Gazette’s Save Our Sources petition. We will be submitting this petition as part of the Home Office RIPA consultation.
This week, working jointly with the Society of Editors, we have also written to around 3,000 national and regional newspaper, broadcast, online and magazine editors asking them to put their names to a joint letter of protest (full text below) which will also be submitted as part of the RIPA consultation.
What you can do to help protect journalists’ sources from state intrusion:
3. Put your name to the Press Gazette/Society of Editors joint letter of protest from UK editors (full text below). If you are an editor and would like to support this initiative email email@example.com
Joint response from UK editors to the Home Office consultation on the Acquisition and Disclosure of Communications Data and Retention of Communications Data Codes of Practice
Coordinated by the Society of Editors and Press Gazette
We, the undersigned, believe that the Acquisition and Disclosure of Communications Data Code of Practice as drafted provides wholly inadequate protection for journalists’ sources.
The revelation that the Met Police used the Regulation of Investigatory Powers Act to view the phone records of The Sun and its political editor in order to identify and punish lawful police sources has caused widespread alarm in the journalism industry.
The new code appears to do very little which would stop a repeat of such abuse of RIPA.
The new code states: “Communications data is not subject to any form of professional privilege – the fact a communication took place does not disclose what was discussed, considered or advised.”
We would argue that the mere fact a public official has contacted a newspaper is highly privileged information.
That an individual has contacted a lawyer or doctor tells us little. But the fact they have contacted a journalist identifies them as a source and exposes them to recrimination.
It is in everyone’s interest that the state recognises the over-arching importance of protecting the confidentiality of journalists’ sources.
Public sector whistleblowers will not come forward to journalists in future if law enforcement agencies have the power to view journalists’ phone records at will.
The new guidelines merely state that the degree of interference with privacy “may be higher where the communications data being sought relates to a person who is a member of a profession that handles privileged or otherwise confidential information (such as a medical doctor, lawyer, journalist, Member of Parliament, or minister of religion).
“Such situations do not preclude an application being made. However applicants, giving special consideration to necessity and proportionality, must draw attention to any such circumstances that might lead to an unusual degree of intrusion or infringement of privacy, and clearly note when an application is made for the communications data of a medical doctor, lawyer, journalist, Member of Parliament, or minister of religion.”
The new guidelines also state that RIPA requests involving journalists can continue to be signed off internally at the agency concerned.
We believe RIPA requests for journalists’ phone records should carry the same safeguards as already exist under the Police and Criminal Evidence Act when it comes to police requests for journalistic material.
RIPA requests involving the telecoms records of journalists (and so, also their sources) must require the approval of a judge who is best placed to balance the public interest in disclosure of the information versus the over-arching public interest in respecting the confidentiality of journalists’ sources.
The new Acquisition and Disclosure of Communications Data Code of Practice must explicitly prevent law enforcement officials viewing the phone records of journalists who are not themselves under suspicion of committing any crime.
The draft code only makes reference to “the degree of interference with privacy” and says nothing about the issue of state interference with press freedom. This is why a judge must consider the case for overriding source protection.
RIPA was intended for tackling serious crime such as terrorism but it is clearly being used by police in relation to relatively minor crimes.
The code needs to balance the seriousness of the alleged crime against the public interest in protecting the confidentiality of all journalistic sources and potential whistleblowers.
The guidance needs to make it clear that a public official communicating information to a journalist without official approval (ie. a leak) cannot be sufficient justification for a RIPA telecoms request.