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Press Enemy #1: Lay off the Guardian, Cameron.

About The Author

Chris Bridges (Executive Editor)

Chris is an IT and Data Protection solicitor at a top 20 full service firm and the founder of Keep Calm Talk Law. He also contributes to Computers and Law and other sector specific publications.

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Last week, seven leading international press organisations, members of the Global Co-ordinating Committee of Press Freedom Organisations, addressed a public letter asking David Cameron to lay off The Guardian, which is currently under investigation for the role it played in the publishing of leaked NSA secrets. These secrets were originally leaked by Edward Snowden, a former NSA contractor, and now exile from the Western world, residing in Russia.

The investigation could result in a number of journalists facing anti-terror charges for the communication of information about British intelligence agents, an offence under Section 58A Terrorism Act 2000. If found guilty, said journalists could face up to 10 years in prison. The alleged committal of this offence is being taken very seriously indeed; a reflection on the damage the heads of British intelligence services have suggested has been done. Sir John Sawyers (Head of MI6) believes “It is clear that our adversaries are rubbing their hands with glee. Al-Qaeda is lapping it up.” Sir Ian Lobban (Head of GCHQ) announced that communications amongst terrorist groups in the Middle East and closer to home had been intercepted, discussing the leaks, and the consequential opportunities for them to move to communication methods undetectable to Western intelligence. (The Telegraph Video).

He believes the effect of these leaks will be felt for years to come, making their jobs far harder. An inference can be drawn from these comments is that these leaks have placed the UK and other Western nations at a higher risk of successful terrorist attack. Lobban alleged that since the 7/7 bombings, intelligence services have stopped 34 serious terrorist threats within the UK, a job that they will now no longer be able to do with the same efficiency.

The heads of the various security services have made a compelling case for the scale of the damage done by the leaks. Therefore, it is understandable why such drastic measures might be taken against those involved. However, this must be balanced with freedom of the press, or we risk eroding the very democratic strength that the western world prides itself on.

The arguments in favour of a prosecution need no further introduction if the above comments from intelligence chiefs are correct. Like most, I am no expert on intelligence matters and therefore am not qualified to disagree. Therefore, in assessing the arguments we should assume the security chiefs speak the truth, and assume a worst-case scenario, the leaks aid a successful act of terrorism.

The Letter

The essence of the committees complaint is that the UK, as a western democracy known for its press freedom, is setting a precedent that it is ‘alright’ to censor the media for the protection of national security:

We are deeply concerned that actions taken by your government will embolden autocratic leaders to restrict the media under the guise of protecting national security or improving media performance. In fact, this is already occurring.

As noted in my opening paragraphs, this concern has emerged due to the pressure that has been put on the Guardian following the Snowden leaks, and in particular Guardian Editor, Alan Rusbridger. They make particular mention of the arrest of David Miranda, the partner of former Guardian journalist who was detained under anti-terror powers at Heathrow airport, bringing the leaked data into the country. Rusbridger was subsequently pressured to destroy all copies of data held by the Guardian. The committee also alleges Rusbridger was accused of breaching national security without evidence.

The committee go on to say that, they do not believe the Guardian broke the law, and if they did they should be investigated by an independent judicial authority, free of political involvement, alleging that comments by political figures have “at a minimum undermined the perception of impartiality”.

Criticism does not end here. The committee also assert that the ‘Rubicon’ Cameron said could not be crossed of press statutory regulation has in fact been crossed by effectively making the so called voluntary Scheme compulsory through powerful statutory punitive damages for those that do not join.

The letter ends with high praise of Britain:

Britain’s democracy, including its robust and diverse media, has been an inspiration to people around the world who struggle to be free, and is a source of British “soft power” and influence.

They state that this reputation is the source of influence on other nations around the world, however the pressure put on the Guardian and the statutory underpinning of the so-called voluntary Royal Charter removes “the ability of Britain to exercise moral suasion and to defend the rights of the world’s most vulnerable journalists”.

Comment

The Committee certainly make a compelling argument against the pressure put on the Guardian and the Royal Charter, and certainly know how to rub the country’s ego the right way with their closing comments. Nevertheless, Rubbing salt into the wound, the UK has also recently dropped three places in the Reporters without Borders global press freedom rankings, to #33. The reason for the drop?

In the United Kingdom, the government sent officials to The Guardian’s basement to supervise destruction of the newspaper’s computer hard disks containing information from whistleblower Edward Snowden about the practices of GCHQ, Britain’s signals intelligence agency. Shortly thereafter, the partner of Glenn Greenwald, the former Guardian star reporter who had worked closely with Snowden, was held at Heathrow Airport for nine hours under the Terrorism Act. By identifying journalism with terrorism with such disturbing ease, the UK authorities are following one of the most widespread practices of authoritarian regimes.

Whilst this is all very compelling, the potential repercussions of the Guardian’s actions must be considered. If we can trust what the spy chiefs have said, these are great. If terrorist groups really are now finding ways to communicate without detection due to these leaks, the Guardian has undone years of work by the NSA and other agencies, which could have just made the difference in stopping the next successful terrorist attack. Unfortunately, like the Guardian, the layperson could never know the actual effect of these leaks, and this has been cited as one of the very reasons the Guardian should not have published what they did; they simply are not qualified to assess the impact on national security.

With two such compelling arguments, what could possibly be the solution? On one hand, the press should not be permitted to put people’s lives at risk, in this country or abroad, but on the other, the press must remain an independent institution for the sake of democracy and setting an example around the world. It is hard to see either argument as a trump to the other. In a utopian world, the press would operate independently and every journalist would possess the ability to make the perfect assessment of what is and is not in the public interest. However, the reality is judgements are often distorted by lack of the requisite knowledge to make a balanced assessment, or human idiosyncrasies. A particularly success-hungry journalist might overstep the mark in the hope that it will be his once in a lifetime career break, another might have a complete moral disregard for loss of life or be extremely pro data-freedom. (Which of these it was in the case of the Guardian, if any, is unclear).

However, without clear guidelines on what is and is not acceptable, can you really hold journalists that overstep the mark accountable? Yet, can this be achieved without regulation that provides punitive measures; guidelines alone will always be pushed due to lack of knowledge or human idiosyncrasy if there can be no repercussions of doing so. A Catch-22 situation.

How the judiciary would solve this dilemma has arguably been answered in a recent High Court decision. David Miranda, as mentioned above is the partner of a former Guardian journalist that was detained under anti-terror powers at Heathrow for possession of a vast quantity highly classified UK intelligence. He claimed that he was unlawfully arrested and held, but his claim was dismissed. Lord Justice Laws reportedly made a similar assessment to the above, that a government official telling the press not to publish something for national security reasons was ‘antithetical to the most important traditions of responsible journalism’, but this was trivial compared with the threat of security. A somewhat circular decision; his logic is understandable, but is trivial too strong a word?

So, what is the solution? Personally, whilst I think the decision the Guardian made was irresponsible, I do not think they should be held to account in this instance. Even if Guardian journalists were irresponsible, they are clearly not terrorists and should not be treated as such. Allowing terrorism charges to be used for regulation of the press is simply disproportionate and would be open to abuse.

I do think the Royal Charter should go ahead, implementing ‘soft-regulation’ which we should hope the press sign up to. However, as recommended in the letter, the statutory underpinning by punitive measures for not signing up should be discarded, otherwise the Rubicon Cameron said we should not cross will be crossed.

Hopefully, this will avoid such issues in the future, without the need for punitive measures for those that overstep the mark. This may sound like ‘closing your eyes and hoping for the best’, but how else can two very important issues be reconciled? If self-regulation does not work, then that will be the time to consider something more serious, such as specific criminal charges for irresponsible journalism. Although best avoided if possible, a line must be drawn somewhere to protect national security. If this does happen, a clear line should also drawn at the other end to stop the abuse of such powers by the government, a line which is not present if current anti-terror law is used. Importantly, if such measures were to be introduced, they should be exercised without political interference; interference with the press is bad enough without political motive.

Further Reading

Various Press Organisations, Letter to David Cameron.

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Tagged: Commercial Law, Criminal Law, Media

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