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    Free Speech Coalition: New UK Espionage Act Must Contain Public Interest Defense

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    A public interest defense should be created to protect journalists and whistleblowers that disclose secret information revealing serious criminal activity or widespread breaches of human rights, an alliance of free speech organizations has said.

    The coalition, which is comprised of English Pen, Index on Censorship and Reporters Without Borders, handed a joint submission to the Law Commission's public consultation on the protection of official data. On top of arguing for a public interest defense to be included in the revised Official Secrets Act, the trio slam the Commission's controversial plans for a new, yet more punitive Espionage Act.

    Under the proposals, espionage would be defined as being "committed by someone who not only communicates information, but also by someone who obtains or gathers it," and there will be "no restriction on who can commit the offense." There would also be longer maximum penalties for leaking official data — 14 years, instead of two. If the proposed law had been effective in 2013, all journalists involved in the Edward Snowden exposures — even those who merely handled copies of secret documents — would've faced jail.

    Moreover, the proposals would make prosecuting leakers even easier than previously. At present, if a government wishes to prosecute a leaker, they must prove the leak was damaging — no such requirement is included in the draft Act.

    Commenting, the Open Rights Group deemed the proposals a "full frontal attack on journalism," aimed at preventing the public from knowing if any government agency had ever broken the law or acted improperly.

    The Commission has argued there is no need for a public interest defense to be enshrined in the Act, as guidelines promulgated by the director of public prosecutions already ensure journalists are only prosecuted when it is "clearly" in the public interest. The trio counter that such a defense would neither give rise to "unworkable uncertainty" nor "provide cover for partisan political activities." Moreover, such defenses are enshrined in other laws, such as the 1996 Employment Rights Act, in respect of whistleblowing and information disclosure.

    ​The submission also states many recent cases clearly demonstrate journalists and whistleblowers lack sufficient protection, and can be subject to coercive measures. For instance, in 2013, a major mainstream media outlet was threatened with prosecution under section 5 of the Official Secrets Act unless it physically destroyed hard drives containing secret files provided to it by Edward Snowden. In addition to the tyrannical overtones of the episode, the destruction was also futile — much of the contents had already been published, and the same files were still held by other international media organizations.

    ​The submission follows the April 26 release of the 2017 World Press Freedom Index, in which the UK dropped to 40 out of 180 due to a number of "worrying moves" against press freedom.

    Troubling episodes cited include the September 2016 detention of award-winning Syrian journalist Zaina Erhaim at London Heathrow airport, and the November 2016 adoption of the Investigatory Powers Act, the most extreme surveillance legislation ever adopted in the UK. The report said the latter law could "serve as a death sentence" for investigative journalism in the UK.

    Related:

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    UK Drops in World Press Freedom Index Over Surveillance, Legal Claims
    OSCE Warns Draconian UK Spy Charter Spells Trouble for Journalism
    'Active Whistleblower Crackdown': UK Gov't Plan to Jail Journalists as Spies
    Tags:
    freedom of speech, espionage charges, whistleblowers, journalism, censorship, UK Law Commission, Index on Censorship, Reporters Without Borders, Edward Snowden, Britain, United Kingdom
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