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Statement: unauthorised disclosure (“leak”) of the Sir Kim Darroch cables

Hacked Off campaigns for a free and accountable press and has previously campaigned for new legislation to have appropriate protections in place for whistle-blowers and investigative journalists.

 

In summary:

  1. Whistle-blowers and responsible publishers should have the freedom to hold the Government to account through publication of confidential information, where it is in the public interest
  2. The Official Secrets Act should be amended to re-introduce a public interest defence in relation to disclosure and publication.
  3. The rule of law in a Parliamentary democracy requires that no one is above the law and newspaper editors fearing prosecution following publication of the leaks should be campaigning for Parliament to change the law – not criticising the police force for enforcing the laws set by Parliament, however objectionable they may be.
  4. Some editors have been grossly hypocritical in criticising the Metropolitan Police Service on “press freedom” grounds – given that many of them opposed completing the Leveson Inquiry into police & press corruption, and are members of the IPSO complaints-handler which has a senior politician[1] installed on the body which has a veto over its rules.

 

Background

Following the publication of leaked reports filed by the UK’s former ambassador to the US, Sir Kim Darroch, the Metropolitan Police Assistant Commissioner Neil Basu has published a statement calling for co-operation with the police service’s ongoing investigation into the matter.

 

Assistant Commissioner Basu remarked in his statement that:

“The publication of leaked communications, knowing the damage they have caused or are likely to cause, may also be a criminal matter.”

 

In response, Evening Standard editor George Osborne said:

“If I were the Metropolitan Police Commissioner, and I wanted to maintain my credibility and the credibility of my force, I would quickly distance myself from this very stupid and ill-advised statement from a junior officer who doesn’t appear to understand much about press freedom”

 

Sunday Times political editor Tim Shipman accused Basu of “threatening journalists with arrest for printing government leaks”.  Financial Times US managing editor Peter Spiegel added, “What are you going to do, Met Police, arrest us?”.

 

Legislative background

In 1989 the Government enacted the most recent iteration of an Official Secrets Act. That Act, among other things, had the effect of removing a defence which was previously in place to protect unauthorised disclosure (“leaking”) where doing so was in the public interest.

 

It is a breach of that Act to disclose the information protected in the Act where that information is likely to cause damage to the state and, separately, a breach to publish it (i.e. to further disclose it after it has been handed over). The only defence available is if the person responsible was not aware that the material published was protected by the Act, or if they did not believe it could be damaging to the state.

 

Following a police investigation, a public interest test is applied by the Crown Prosecution Service before charges are brought.  This, however, only occurs after the investigation has taken place – which can have chilling effects in itself.

 

The statement from the Metropolitan Police Service

Although the statement has been criticised for threatening journalists with prosecution, if it is read with the legislation one can see that it accurately reflects what the legislation itself says.

 

The comment which has been heavily criticised, that publishing information which is likely to cause damage “may also be a criminal matter” may be intended simply as a statement of fact.

 

It is the view of Hacked Off that this is wrong – there should be a public interest defence available – but the statement given accurately reflects the position which Parliament agreed in 1989. If editors agree with us that reform is necessary, then they should campaign for Parliament to change the law in this respect.  We would join them.

 

On this note, it is also a shame that most of the editors commenting on Twitter appear to show great concern for themselves but make little (if any) reference to the individual whistle-blower. It is that individual who could face prosecution without the might of a major publisher’s legal department behind them.

 

Changing the law

Hacked Off’s position is that a range of Acts – including the 1989 Act – should benefit from a public interest defence. The defence should apply to whistle-blowers where the information disclosed is reasonably believed to be in the public interest. The same defence should also be accessible to the publishers of the information – such as news publishers and platforms (and other intermediaries).

 

Hypocrisy of editors

There has been great hypocrisy in editors’ concerns over this issue.

 

Most editors who have been critical are from titles which are members of “IPSO”.  IPSO is a complaints-handler sitting outside of the UK’s model of independent “recognised” regulation.  As such, IPSO does not benefit from the same constitutional protections on freedom of expression. Its rules are subject to veto from a body called the Regulatory Funding Company (“the RFC”), on which a senior politician sits.  To allow a politician to be so heavily involved in a press “regulator” is a red flag for press freedom campaigners. Yet most newspapers willingly signed up, on the promise that IPSO, unlike regulators operation under the recognition model, would shelter them from meaningful accountability.

 

Meanwhile, the same publishers also opposed completing the Leveson Inquiry into police and press corruption.  The corruption inquiry would have seen hidden and buried secrets in the police and the press industry come to light.  Yet many of these publishers called for its suppression – presumably because they had something to hide.

 

If these editors are serious about freedom of expression and exposing the truth to the public, they should join or establish an independent regulator and reverse their position on Part Two of the Leveson Inquiry.

 

[1] Lord Black of Brentwood, a party-political member of the House of Lords, who sits on the Regulatory Funding Company; an organisation which has various powers over the IPSO complaints-handler.

 

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