Written by: Hannah Williams

The Official Secrets Act 1989 was first created in 1911 to protect sensitive areas regarding security and international affairs within the country. However, the latest proposal for its update seems to primarily attack freedom of the press instead of focusing on the Act’s initial function.

The government has encouraged a variety of bodies and organisations to present their opinions relating to whether the suggested proposals are appropriate.

The Act as it stands

The Act currently allows for a person to be guilty of an offence if they make a ‘damaging disclosure of any information’ relating to security or intelligence. As it currently stands, proof of the ‘damage’ must be shown in order for a successful prosecution.  The law for those in the security and intelligence services is strictest as it ensures that any unauthorised disclosure is an offence. For Crown servants, however, a person is only guilty if the information which is leaked falls into a specific category (such as defence) and is regarded as ‘damaging’.

According to the House of Commons Library, prosecutions are extremely rare, totalling up to around just one a year. Yet certain bodies still insist that it already threatens journalism relating to the public interest.

The proposals

One change that has been suggested is to increase the maximum sentence for those found guilty under the Act and also whether more types of information should be protected. The government has argued that these changes are necessary to best protect sensitive information from new, dangerous security threats.

Another, and fairly controversial, difference is that there is to be no ‘public interest defence’ as this does not ‘strike the right balance’ between the freedom of the press and the harm that could be caused by leaks of sensitive information. This type of defence would allow journalists and others to publish certain information if it is seen to be important for the public. Without such a defence, journalists will be severely restricted and may struggle to provide necessary content to readers.

Furthermore, another suggestion is that proof of damage should no longer be required. This would mean that someone could be charged for an offence by publishing information that is in the public interest despite no damage having occurred.

Criticisms

It will be no surprise to hear that many are campaigning against these changes. The National Union of Journalists have expressed their concern that the public interest defence would provide ‘improved safeguards’ for journalists in addition to an ‘essential safety net’ for whistleblowers. Reporters Without Borders have echoed this concern and argue that the defence was a ‘necessary reform’ to ensure that journalists are protected. Without such a defence, journalists may be at great risk.

The Press Gazette in particular has responded to the government’s proposals with disapproval. They argue that it would be ‘embarrassing and worrying if, as we are encouraging other countries against supressing journalism…we were to bring in a legislative crackdown on journalism at home’. Their article furthers this to say that any reform should include ‘a robust public interest defence to protect the valuable work journalists carry out’.

Similar concerns have been emphasised by other bodies and campaigners. Former Guardian editor Alan Rusbridger is one of these campaigners who has warned that the reform has the potential to ‘criminalise journalism’ and pose a ‘menacing threat to free speech’.

Government Response

The government has argued that, in relation to the lack of the public interest defence, journalists are seldom in a position themselves to try to compare the damage of a publication against public interest. They have continued in response to the Commission’s suggestions that a person trying to make an unauthorised disclosure ‘will rarely (if ever)’ be able to judge against the above distinction.

A Home Office spokesperson has also stated that the ‘government is committed to protecting the rights’ of the press and that new legislation shall be introduced which will be ‘balanced to protect freedom of the press and the ability for whistle-blowers to hold organisations to account when there are serious allegations of wrongdoing’.

Furthermore, in its proposals, the government has also said that they ‘do not consider that there is necessarily a distinction in severity between espionage and the most serious unauthorised disclosures’. This effectively suggests that publications of the press including leaks could be as if not more damaging than acts of espionage.

Conclusion

As can be seen, there are some grave concerns for journalists and reporters across the country relating to how much the suggested reforms would restrict what they are able to publish. The lack of public interest defence and need for evidence of damage creates further concern as it effectively allows for a wide range of publications to be deemed ‘damaging’ when in fact it may just be a topic that embarrasses the government.

The proposals are yet to be confirmed and we shall see in the upcoming months what will be settled upon as fair and unfair by the respective parties.