Don’t outlaw free speech

Don’t outlaw free speech
Chris Mullin outside the Old Bailey © Tim Dawson

Union pressure is critical to keep journalists free from legislative binds…

Read the 9,887 words with which Judge Mark Lucraft upheld Chris Mullin’s right to protect his sources, and one thing shines through. The case law cited will be very familiar to NUJ members. Nearly all of it was financed with their subscriptions.

Overriding all is Bill Goodwin, whose bravery over six years was backed by the NUJ. His case (concluded in 1996) established that the right to free expression, enshrined in the European Convention on Human Rights, guarantees a journalist’s right to protect their sources. That ruling is cited in every British textbook on media freedoms.

Also referenced by Judge Lucraft, were the NUJ-backed cases of Robin Ackroyd, who resisted Ashworth Hospital Authority’s 2002 application for him to reveal his source for a story about Ian Brady, and Shiv Malik, who in 2008 provides the only other case law governing production orders made under the Terrorism Act (2000). 

As the editors of McNae’s Essential Law for Journalists prepare their 26th edition, the case of Chris Mullin will be added. His production order brought under the Terrorism Act 2000 and refused by Judge Lucraft shows that
a public-interest defence is possible against this potent threat to journalists. The welcome judgment underlines how reliant a free media is on an array of legal provisions that are in permanent flux. Without unstinting critical oversight, vital journalistic liberties are at risk. 

“Lawfare” and strategic lawsuits against public participation (Slapps) are recent coinages. They describe an age-old issue – the practice of the wealthy and the thin-skinned deploying batteries of legal challenges to frustrate the
work of journalists. Former FT reporter Catherine Belton’s experience after publishing Putin’s People gives a flavour of such assaults. She told the House of Commons Foreign Affairs Committee: “I didn’t know if my publisher would be able to withstand the barrage of claims. I thought the book might have to be withdrawn.” 

Catherine Belton and HarperCollins, her publisher, resisted writs from five oligarchs issued within a week of each other, among them one from Russian businessman Roman Abramovich. The cases were settled with agreement to minor alterations – and spectacular costs. Her case is far from isolated. Kleptopia author Tom Burgis faced a similar onslaught, subsequently discontinued. Carole Cadwalladr awaits the outcome of the action brought against her by pro- Brexit campaigner Arron Banks. 

For many years this situation has little troubled our government. Now that the blood of thousands soaks Ukraine’s soil, the government has promised to act against the London law firms which have profited spectacularly from Russian-sponsored litigation. 

In March, Justice Secretary Dominic Raab announced a package of proposed measures that could include a cap on costs for lawsuits and a requirement that claimants prove”actual malice”. A stronger public-interest defence has also been mooted, or for courts to be able to dismiss cases at a far earlier stage. But he needs to match words with action. 

Arguably more pressing is the fallout from the Bloomberg v ZXC case. In February, by unanimous verdict, the Supreme Court held that a person who is under criminal investigation has, before being charged, a reasonable expectation of privacy, upending decades of reporting practice. 

Bloomberg News editor-in-chief, John Micklethwait said: “This was reporting on ZXC’s business activities — and an investigation by the authorities into possible malfeasance at a huge company that could have an effect on many people who invested in it. The courts have now presented the powerful with a path to keep their names out of print for years.” The ruling was a gift to future Robert Maxwells, he suggested. 

A simple fix to this would be a short bill establishing a far-reaching public-interest defence for journalists and whistleblowers. Recent distaste for Russian oligarchs aside, however, little in our current government’s trajectory suggests that this will happen spontaneously. 

The Home Office has recently completed consultation on proposed reforms to the Official Secrets Act (OSA). Draft legislation has yet to appear, but Home Secretary Priti Patel has set out her initiative’s guiding principles. Breaches of the OSA are to attract significantly longer jail sentences, and not just for those who leak information, but also for the recipients of classified documents. The most troubling sentence in the government’s policy paper is this: “We
do not consider that there is necessarily a distinction in severity between espionage and the most serious unauthorised disclosures.” Put another way, a journalist with a leaked document is as bad, or worse, than a hostile foreign spy.

The proposals also suggest watering down the protection of journalistic material contained in the Police and Criminal Evidence Act. In England and Wales, if the police want access to a journalist’s records, photos or video, they must obtain a court order. The government would like the police themselves to be able issue such an order in certain circumstances. 

Patel’s proposals were preceded by a Law Commission report sketching out possibilities for a reformed OSA. Within this was a striking proposal. A public interest defence should be enshrined in law and a statutory commission established to adjudicate in the event of a journalist being accused of breaching the OSA. Patel gives this short shrift, alas. The Law Commission’s recommendations “do not strike the right balance”, says her document. 

OSA reform is not the only point at which Patel’s commitment to the free press will be tested. In all likelihood, before the summer, the draft order to extradite Julian Assange will drop on her desk. It would still be in her gift to refuse, but few think she will. Once her ink dries on the order and Assange is bundled into a plane, almost certainly for the last time in his life, the shadow of judicial snatch squads from America will hang over journalists anywhere. Handle a classified document from Washington and you too could see out your days in a supermax prison in sunny Colorado. 

The Online Safety Bill, currently before Parliament, defines “journalism” too tightly to protect all professional editorial content. Automated facial recognition by police cameras remains unregulated, creating a threat to sources. The lack of clarity about journalistic exemptions from data protection laws continue to devour the time of newspaper lawyers. 

There are crumbs of hope beside Mullin’s victory and the possibility of Slapps, presently being investigated by
a committee of peers, being curtailed. If you think that we are better served by a legal framework that enables responsible journalism, then add your voice to chorus.