Free speech groups call for public interest defence for whistleblowers

English Pen, Index on Censorship and Reporters Without Borders condemn proposal for a more punitive Espionage Act

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

English Pen, Index on Censorship and Reporters Without Borders have condemned a proposal by the Law Commission for a more punitive Espionage Act with longer maximum penalty for leaking official data.

The Law Commission has recommended there is no need for a public interest defence because “guidelines promulgated by the director of public prosecutions are designed to ensure that a journalist is only prosecuted when this is clearly in the public interest”.

In a combined submission to the commission’s consultation, which closed this week, the three organisations argue that a public interest defence could be inserted into the existing Official Secrets Act.

They say such a defence would protect disclosure of information “which demonstrated, for instance, criminal activity of a level of seriousness which attracts punishment above a particular threshold, or breach of human rights which applied to a large number of people.”

A public interest defence “would neither give rise to unworkable uncertainty nor provide cover for partisan political activities”, their submission asserts. A similar whistleblowing provision already exists within the 1996 Employment Rights Act, they point out; Canada’s Security of information Act also provides a public interest defence.

Relying on reporting concerns to the newly appointed investigatory powers commissioner, Lord Justice Fulford, as the Law Commission report proposes, would be impractical and overburden him as he pursues his broader responsibilities, the organisations say.

“The commissioner’s existing oversight and statutory duties may allow the post-holder little time to devote to the receipt of, investigation of, and reporting on, matters disclosed to him.”

Journalists and whistleblowers do not currently have sufficient protection, the three anti-censorship organisations say. “For instance, in 2013 the Guardian newspaper was threatened with prosecution under section 5 of the Official Secrets Act 1989 unless it physically destroyed hard drives and memory chips containing the secret files provided to it and others by Edward Snowden. The Guardian destroyed the files notwithstanding that their contents had in some cases already been published and that the files were still held by other media organisations.”

Jo Glanville, the director of English Pen, said: “This [proposal by the Law Commission] seems to be rolling the back the tide in a most pointless manner.”

Contributor

Owen Bowcott Legal affairs correspondent

The GuardianTramp

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