Journalists fear UK’s proposed changes to Official Secrets Act

London, United Kingdom – The collaboration between whistle-blowers and journalists has for years led to major revelations about corruption and the abuse of power in the United Kingdom.

In 2013, journalists exposed the scale of mass surveillance carried out by Western governments through documents leaked by the National Security Agency (NSA) dissident, Edward Snowden.

In 2009, the media uncovered how Members of Parliament abused the parliamentary expenses system.

And in the mid-2000s, reporters exposed MI6’s collusion with the CIA’s rendition and torture programme.

“Some of the most decisive society-changing events come from whistle-blowers and leakers when they genuinely acted to bring truth to power and to bring right to hidden wrongs,” said Duncan Campbell, an investigative journalist specialising in surveillance.

“They are the most important inspirations for effective journalism.”

Under the country’s Official Secrets Act (OSA), it is a criminal offence for government officials to reveal certain kinds of classified information and for journalists to publish it.

Investigative journalists and media rights groups in the UK are now pushing back on a consultation from the Home Office to toughen the OSA, which was last reformed in 1989.

The Home Office recently said that it will update the act to “improve” the ability of the state to protect the UK from threats in the modern world, where espionage and leaks are largely conducted through new technology.

Journalists and media rights groups say that the proposals, which include expanding the scope of what information should be covered by the act and extending the punishments for breaking it, will deter the press from holding the government to account.

Martin Bright, an investigative journalist and acting editor at the Index on Censorship, which campaigns for freedom of expression, says that the changes “puts the interests of the state in conflict with the interests of the public”.

Prime Minister Boris Johnson has insisted the review would not “interrupt the normal process” of the media using confidential sources.

“I don’t want to have a world in which people are prosecuted for doing what they think is their public duty,” he told LBC radio.

History of the OSA’s misuse

The OSA was first created in 1911, making it an offence to disclose any official information without lawful authority, and last updated in 1989, to target spies and corrupt civil servants.

Prosecutions, a decision that must be made by the attorney general, are rare – there are fewer than one a year.

Campbell says the act has long been used as a tool to “impede journalism”.

Almost 50 years ago, he faced trial on charges of breaking the OSA after speaking with a former soldier about the government’s surveillance activities. ​​

Following a public defence campaign – backed by the National Union of Journalists (NUJ) – the judge discharged Campbell, describing the case as an “oppressive prosecution”.

More recently, in 2018, two investigative journalists were accused of breaching the OSA among other offences after obtaining a confidential report, which contained information about a 1994 loyalist massacre in Loughinisland, Northern Ireland, and a failed police investigation into the murders.

After a judicial review, Belfast’s high court found that the journalists acted in “nothing other than a perfectly appropriate way in doing what the NUJ required of them, which was to protect their sources”.

Journalists now worry that the proposals could make it even easier for the OSA to be used inappropriately against the press.

The proposed changes

One of the main changes is to widen the scope for prosecutions.

The consultation document says that offences should no longer require “proof of damage,” or evidence that the leaked material has harmed the UK’s national security. Instead, they should require “proof of the defendant’s knowledge or belief that the disclosure would cause damage”.

It also recommends extending prison sentences for those who make “unauthorised disclosures”, from two years to up to 14 years.

“There is a deliberate blurring of the lines between whistle-blowers, journalists and spies” as the paper does not mention the words ‘journalist’ and ‘journalism’,” said Tim Dawson, executive member of the NUJ.

“It also says there is no ‘distinction in severity between espionage and the most serious unauthorised disclosures’, including ‘onward disclosure’ in the press, and suggests that journalists can be worse than spies because spying will often only be to the benefit of a single state or actor.”

Dawson said that for investigative journalists, who already tend to be more at the more vulnerable end of journalism, the changes will have a “chilling effect” on conducting large, complex investigations.

“Journalists carrying out investigations don’t think that they’re on the edge of criminality. This will make their lives profoundly more difficult,” he said.

Reporters say it could also deter people from passing secret documents to the press.

Bright, former Home Affairs editor at The Observer, exposed leaked documents from Katharine Gun, a former linguist at the UK’s intelligence service, Government Communications Headquarters (GCHQ), in 2003.

Gun was charged with breaching the OSA for sending confidential information to The Observer that revealed the United States and UK were planning to use underhand means to induce swing-voter nations at the United Nations to support the invasion of Iraq.

Her case, which was adapted into Official Secrets, a film starring Keira Knightly, was eventually dismissed.

“It is very likely that Gun would have been imprisoned if the proposed changes had been made. It would be a serious deterrent to future disclosures,” said Bright.

A public interest defence

Journalists and media rights groups are also concerned that the Home Office has dismissed the recommendations of the independent Law Commission, to include a new legal defence for those deemed to be acting in the public interest.

The consultation document argues that “these proposals could in fact undermine our efforts to prevent damaging unauthorised disclosures”.

Under the current act, “a newspaper has to decide very quickly whether it can justifiably publish classified information in the public interest,” said Bright. “It’s never easy – you have to decide whether you’re going to break the law.”

According to the NUJ’s Dawson, the government has “jettisoned the one idea that would have created a significant new safeguard”.

Journalists agree that there is a strong case for modernising an act that was conceived when the internet was in its infancy and for strengthening the UK’s defence against new forms of espionage.

“But under the cover of security, the government has chosen to introduce an authoritarian piece of legislation”, said Bright. “It will merely make it more difficult for civil servants to disclose wrongdoing and for journalists to uncover it.”