Theresa May-Donald Trump piece by street artist Bambi. Yui Mok/PA Wire/PA Images. All rights reserved.Last autumn, when the UK’s menacing Investigatory Powers Act was on the verge of being adopted, the human rights community grew increasingly frustrated by the lack of public interest in what would later be dubbed “the most extreme surveillance law in UK history”. Reporters Without Borders – known internationally as Reporters sans frontières (RSF) – was among the groups working frantically to stop passage of the bill (the ‘Snoopers’ Charter’), in the absence of sufficient safeguards for whistleblowers, journalists, and their sources.
RSF cautioned that the bill could serve as a “death sentence” for investigative journalism in the UK. And yet it passed, with Labour whipping its MPs and peers to abstain rather than oppose the bill, and hijacking the final few debates with a piggybacking amendment on press regulation that had no business being tacked onto the bill in the first place, yet effectively diverted focus from the serious surveillance matters at stake.
At the time, one journalist exclaimed: “You are living in a Black Mirror episode and you don’t care”. Now, three months later, with stories breaking around the Law Commission’s alarming proposals under the auspices of a new ‘Espionage Act’ that could land journalists in jail for up to 14 years for obtaining leaked information, the dystopian world of Black Mirror once again seems uncomfortably close to our present reality in the UK.
Worrying moves under a new prime minister
Since Theresa May became prime minister last July, the UK government and parliament have carried out a number of worrying moves against press freedom. The UK’s press freedom record was already far from perfect, with a ranking of 38th out of 180 countries in RSF’s 2016 World Press Freedom Index, but disturbing trends taking place under May’s leadership may result in the UK’s ranking slipping even further in this year’s Index.
The case of Zaina Erhaim stands out – an award-winning Syrian journalist who was detained and questioned by UK border agents upon arrival at Heathrow airport in September. Officials seized Erhaim’s passport, which had falsely been flagged as stolen by Syria’s Assad regime, with which the UK has “no direct contact”. The move left Erhaim and her infant daughter at risk, and set a worrying precedent for other critical foreign journalists and activists travelling to the UK.
On the legislative front, since taking effect on 31 December, the Investigatory Powers Act, drafted by May herself when she was Home Secretary, has given the government vast powers to monitor, intercept, and store the communications data of tens of millions of people. Parliament failed to include sufficient provisions to protect whistleblowers, journalists, and their sources. This makes any guarantee of anonymity impossible, and puts sources at risk, jeopardising the most critical aspect of investigative journalism – the ability of journalists to get information that some are determined to hide.
In parallel to the passage of the Investigatory Powers Act, press regulation issues once again came to the forefront of the British press freedom debate. Following the Press Regulation Panel’s approval of Impress as a regulator in November, Section 40 of the Crime and Courts Act 2013, which had remained theoretical in the absence of a state-approved regulator, became a possible active threat to press freedom.
RSF and other press freedom groups expressed particular concern regarding a cost-shifting provision that could hold publishers who refused to join the state-approved regulator liable for all legal claims made against them, regardless of merit – an overly punitive approach that would cripple many small publishers. The government opened the matter to public consultation, and RSF and English PEN drafted a joint submission calling for Section 40 to be repealed.
Now, with still no decision from the government on the Section 40 consultation, even more worrying plans have come to light. Over the past week, startling proposals of the Law Commission have become public, with the release of a consultation paper titled ‘"Protection of Official Data". Without meaningfully engaging NGOs or media, the Law Commission has recommended replacing the Official Secrets Act with a disturbing new “Espionage Act”. The matter is now open to public consultation, closing on 3 April.
As proposed, the act would make it easy to categorise journalists, whistleblowers, and human rights defenders as ‘spies’, by redefining espionage as “capable of being committed by someone who not only communicates information, but also by someone who obtains or gathers it”. There would be “no restriction on who can commit the offence”.
Most alarming of all, the maximum jail sentence for such offences would be increased from two years to a staggering 14 years – meaning British journalists could face serious prison sentences for carrying out legitimate journalistic work in the public interest. The scope of the law would also be broadened to include information that damages “economic well-being”, leading some to point out that leaks about Brexit negotiations could land journalists in jail.
Erosion of civil liberties in the name of security
Although certainly alarming, sadly, the proposed new “Espionage Act” is hardly surprising. It is part of a misguided trend of civil liberties being sacrificed in the name of security across Europe and the United States. With horrific terrorist attacks grabbing headlines and increasing political uncertainty in the wake of the British EU referendum results and the election of Donald Trump as US president, citing security concerns guaranteed public compliance with government proposals to do something – to do anything – to address perceived threats.
But while increased security measures are in many ways justifiable, this cannot be done at the expense of our fundamental rights, of the very values underpinning British democracy. Human rights, including press freedom, must factor prominently in the debate, and safeguards must be included in all relevant policies and legislation to ensure their protection, not their continued erosion.
The public consultation on the Law Commission’s proposals is an opportunity for the government to start heeding these concerns. The views of NGOs, of the legal community, and the media must be taken into consideration – and these views, so far, are united in their alarm at any prospect of jailing journalists for simply doing their jobs. The “Espionage Act” as envisioned is incompatible with British law and British values – not to mention our obligations under the European Convention on Human Rights. But then, in Theresa May’s Britain, the Convention may very well be the next thing to go.