A worrying article in today’s Guardian by the indefatigable Duncan Campbell, in which he reports that police are using the Terrorism Act (2000) to try to force a journalist to hand over information from a source.
This issue is the scared cow of journalism – that they never reveal their sources. To do so would immediately deter whistleblowers from speaking in confidence to the media, and government crimes and lies would remain secret. The protection of journalistic sources contributes to safeguarding our democracy, as legislation such as the Freedom of Information Act (2000) is effectively toothless when up against the inner workings of the state.
Because of this, journalists with integrity in this country and abroad are willing to risk prison rather than hand over their notes. As Campbell remarks, this happened to Martin Bright in 2000 when he was Home Affairs Editor at The Observer. The Metropolitan Police Special Branch went crashing into the offices on Farringdon Road, demanding that he hand over all his notes on the Shayler case. More bizarrely, they also demanded a letter Shayler had sent to The Guardian, even though it had already been published in the newspaper. Thankfully for Martin, the National Union of Journalists supported him, and the police eventually backed off.
The fact that the police are using the Terrorism Act as is a worrying new development. But it’s not just production orders from the police that journalists and newspapers have to be worried about. The authorities have a range of weapons in their arsenal if they choose to suppress information emanating from inner government circles or the intelligence world. And yet it is within these very circles that the most heinous crimes and violations are committed, and whence the most significant whistleblowers tend to emerge. Think Dr David Kelly, David Shayler, Katherine Gun.
So, what else can the authorities use to suppress valid criticism? Well, firstly and most notoriously, we have the Official Secrets Act in the UK. This does not just prevent intelligence officers and notified government officials from ever speaking to anyone outside the agency about anything, ever (Section 1(1)). Slightly less well known is Section 5, which makes it a crime for any journalist to receive or elicit information from these whistleblowers that damages “national security” (the term to this day remains undefined). Of course, as we saw in the Shayler case, the government is always extremely reluctant to cross the media and enforce this, so it is usually just the unfortunate whistleblower who is hung out to dry.
If the threat of the OSA fails, the government can always find a tame judge to issue an emergency injunction. Again, this happened in the Shayler case, when an injunction was taken out both against him and the UK’s national media. Needless to say, the injunction against the media was dropped (even this government quailed at the prospect of taking on News International and the Mail group), but remains in place to this day against the hapless whistleblower.
This injunction is no small thing. The government’s lawyers have used it to frighten off publishers from even looking at a novel (that’s right – a work of fiction) that Shayler wrote in 1998. Letters winged their way from government lawyers to UK publishers in London in 1999. And when Shayler built a website, hosted by Tabnet in California, the government wrote to them pointing out that there was an injunction in place and asking for the site to be taken down. Tabnet gently pointed out that perhaps the British government had forgotten about 1776, and continued to host the site.
If the OSA and injunctions are not enough, we also have the notorious D Notice Committee (now rebranded as the Defence Press and Broadcasting Advisory Committee), a body that can block publication of a story by issuing a notice at the say-so of the government. Very appropriate in a so-called democracy. What makes it worse is that the Committee is made up of volunteers from amongst the great and the good from the media world, as well as representatives from government departments. These guys, senior editors and TV executives, enter the charmed inner circle and start to police their own industry. It’s amazing how quickly new appointees go native and fight the government’s corner.
So there you have it – a whole battery of laws to protect the British Establishment from the scrutiny and constructive criticism of the media. When a journalist of integrity stands up to the authorities, we should all support them. They are providing a crucial service of ventilation and accountability for our retreating democracy. I wish Shiv Malik, the freelancer at the eye of the current storm, the very best.