Press freedoms in the U.K. could be stripped back by amendments set to be made to the Official Secrets Act that would render it illegal for journalists to publish leaked information regarding the government that is deemed to “not be in the public interest.”
The current Official Secrets Act, last updated in 1989, makes provisions for whistle-blowers who leak sensitive information that they consider to be in the public interest, distinguishing their actions from espionage. Now, a government consultation from the Home Office has suggested a reform to the legislation that will do away with the distinction, essentially treating such journalists and their sources as spies. The Home Office has also proposed a dramatic increase in prison time for breaking the law, going from two years to a possible fourteen years behind bars.
According to the Home Office, headed by Priti Patel, “the scale and potential impact of espionage and unauthorised disclosures has changed significantly since the Official Secrets Acts 1911-89 first became law.” As a result, the government argued that developments in communication and technology pose a “discernible and very real threat” to national security.
The Law Commission, an independent body in Britain which reviews English and Welsh law and periodically recommends changes, began a review process of the Official Secrets Act in 2017, proposing alterations to bring the legislation up to date with advancements in technology and the speed of data transfer.
As part of the proposals offered, the Commission suggested codifying a “public interest defence,” introducing a mechanism whereby individuals who offend against the Official Secrets Act, such as some government whistle-blowers charged with “unauthorised disclosure”, might have a means of justifying their actions in a court of law so that “they may be absolved of criminal liability.” The provision would also protect journalists who receive leaked documents from necessarily being prosecuted.
Patel’s Home Office disagreed with the Law Commission’s assessment, claiming that such a provision would “undermine our efforts to prevent damaging unauthorised disclosures, which would not be in the public interest.” Aware of the implication that journalists might be penalized under the new legislation, the Home Office emphasized “the need to protect privacy, press freedoms and freedom of expression.”
However, the document then explained that the Home Office does “not consider that there is necessarily a distinction in severity between espionage and the most serious unauthorised disclosures, in the same way that there was in 1989.”
“Although there are differences in the mechanics of and motivations behind espionage and unauthorised disclosure offences, there are cases where an unauthorised disclosure may be as or more serious, in terms of intent and/or damage,” the consultation reads.
Continuing, the Home Office pointed out that “[s]afeguards already exist” for government whistle-blowers “which allow them to raise concerns without needing to undertake an unauthorised disclosure.” However, the “safeguards” are all internally handled within the government. To this end, Victoria Newton, editor of The Sun newspaper (which broke the story last month on former British Health Secretary Matthew Hancock’s adulterous affair, leading to his dismissal and separation from his wife), has defended the press’ right to hold the government to account for wrongdoing.
“We can’t have a democracy where the only place somebody can go to expose wrongdoing is the place where they work because it won’t get exposed, so I’m just staggered really that they thought it was in the public interest to do this,” Newton said on the BBC’s Andrew Marr Show on Sunday.
Some critics of the proposed changes to the Official Secrets Act have suggested that the journalists who exposed Hancock could have been prosecuted if the new law was already in place, given that the report relied on leaked CCTV footage of the former minister, according to the Daily Mail.