NMA: Official Secrets Act Reform Could Criminalise Public Interest Journalism

Sweeping reforms to the Official Secrets Act could criminalise public interest journalism by exposing journalists and whistle blowers to harsh new penalties such as lengthy prison sentences, the News Media Association said today.

Responding to the Home Office’s consultation on legislation to counter state threats, which closes today, the NMA warned that proposals for stiffer custodial sentences and widening the scope for prosecuting individuals could open the floodgates to the media and its sources being prosecuted despite acting in the public interest.

Instead of implementing these draconian measures, a public interest defence should be introduced to the regime to protect freedom of speech and a new Statutory Commissioner could be created to provide swift redress for whistle-blowers caught by the Official Secrets Act.

From time to time, it is necessary to adjust the law to maintain a sufficient level of security in response to evolving threats, but the changes must not come at the expense of public interest press freedoms which do so much to expose wrongdoing, the NMA added.

The NMA “vehemently opposes” the proposal to replace the requirement to demonstrate damage in order to bring a prosecution against whistle-blowers or journalists with a “subjective fault element” which could open the regime up to widespread abuse by those seeking to hide embarrassing truths from public view.

“As part of any thriving democracy, the public and a responsible press must be free to shed light on the state’s injustices,” said NMA legal policy and regulatory affairs director Sayra Tekin.

“The proposed measures will deter whistle blowers from coming forward with vital information which the public have a right to know and place a chill on investigative journalism which holds power to account.

“We strongly urge the Government to reconsider these measures and instead work with the industry to place appropriate protections for journalism at the heart of the Official Secrets Act so that freedom of speech is enhanced by the new regime rather than weakened further.”

In their consultations, the Home Office and the Law Commission have not provided evidence that the current damage tests in the legislation present major obstacles to the Government’s pursuit of offenders and criminal prosecutions.

The NMA also opposes any increase in severity of sentences, whether by increasing the maximum term of any prison sentence, replacing fines with custodial sentences, as this would “inadvertently worsen the already weak position of journalists and whistle-blowers through harsher sentencing.”

Instead of creating tougher penalties for journalists and whistle-blowers, the regime should be changed to introduce an “absolutely essential” public interest defence to the Official Secrets Act which would enable matters of public interest to be properly scrutinised and debated.