Law Commission proposals would have chilling effect on public's right to know
21 July 2017
Proposals to reform the Official Secrets Act would have a wide-ranging and chilling effect on the public's right to know, the Society of Editors has warned.
Responding to the Law Commission's consultation on the Protection of Official Data, the Society said that the proposals present a realistic prospect of journalists facing imprisonment for reporting in the public interest.
The Society said: "While the Society acknowledges the Government’s assurance that its intention is not to restrict the freedom of investigative journalism or public service whistleblowing, we remain concerned that the draconian recommendations would make it significantly easier for elected officials to prosecute, convict and imprison anyone involved in obtaining, gathering and disclosing information irrespective of the public interest."
The Society, which is responding to the consultation having met representatives from the Law Commission earlier this month to discuss the legislation, said that any reforms should look to include a public interest defence for journalistic material.
It said: "We cannot accept proposals we firmly believe will punish those making disclosures that are unlikely to cause harm; that make it a criminal offence to leak information to which there is a public right of access; increase the maximum prison sentence for those convicted under the 1989 Act; and that do not permit any kind of public interest defence.
“We do not feel sufficient attention has been paid to the merits of an essential public interest defence, and do not accept the assertion that its existence would in any way undermine the trust upon which the relationship between ministers and the Civil Service is based.
“Since statutory public interest defences already exist, the Society does not agree that the perceived problems associated with the introduction of one in this instance outweigh the benefits.
"It is the role of a journalist in a democratic society to hold government and other institutions to account by reporting in the public interest. This is achieved through scrutiny of the executive.
“The UK media performs a vital service in accordance with the long-established principle of the freedom of the press to carry out its investigative and analytical work without fear of prosecution, intimidation or other interference.”
The Society went on to warn that there was a danger that information obtained and published through freedom of information requests could be criminalised under the proposals.
It added: "It is absurd that in a democratic society whistleblowers and journalists could face jail for leaking and receiving information that is demonstrably in the public interest, and that they may have procured legitimately by making a request under the Freedom of Information Act.
“We strongly caution against proposals being put forward in haste. Attempting to indiscriminately punish unauthorised procurement and disclosure of official information will, we believe, severely hamper investigative journalism.
“Whistleblowers speak to the press only if they are confident in the media’s ability to protect its sources.
“A journalist can only offer that protection if they are assured of their own protection under a public interest defence. Removing this threatens the ability and willingness of news organisations to continue to conduct investigative journalism in the public interest.”
Read the Society’s submission in full here.