Secrecy vs Democracy: How the National Security Act threatens press freedoms
New espionage offences in the recently enacted National Security Act 2023 (NSA 2023) threaten to criminalise investigative journalists and whistle-blowers attempting to expose government corruption. Those involved could be convicted with up to life imprisonment. The NSA 2023 must either be narrowed in scope or incorporate a public interest defence to safeguard press freedoms and uphold the principles of open democracy.
The broad nature of the offence requirements creates the scope for concern. Sections 1-3 covering the espionage offences, and the ‘foreign power condition’ in section 31, introduce the risk of criminalising situations which do not actually involve espionage, acting as a deterrent for whistle-blowers speaking out against corruption, and for investigative journalists’ willingness to risk exposing it. The “chilling effect” this creates on press freedoms directly challenges ideas of open democracy.
Consider this, a British journalist working abroad under the financial backing of a (non-threatening) foreign government’s state broadcaster, reporting on leaked information received from a confidential source. The protected information relates to UK public funds and individuals’ efforts to hide them in offshore jurisdictions, implicating the UK Government in corruption. Is this legitimate journalism in a functioning democracy or a matter to remain secret under the guise of government?
The background
To give some context, the NSA 2023, given royal assent in July, was introduced to replace existing espionage laws in the Official Secrets Acts (OSA), which were primarily designed to counter threats from spies in the First World War. The Law Commission report, “Protection of Official Data”, first outlined the undeniable need for reform, seen most evidently through its introduction of modern language. The OSA’s archaic use of “enemy” is replaced with “foreign power” to include state-controlled companies and terrorist organisations, for example.
The act’s intention is also clearly prescribed: “to deter, detect, and disrupt those state actors who seek to harm the UK by covertly targeting the UK’s national interests, sensitive information, trade secrets and democratic way of life”.
The problem is the direct incongruity between aim and outcome. As Lord Marks described during a House of Lords debate in January 2023, rather than protecting the “democratic way of life”, the act’s deterrent effect on investigative journalism represents a threat to open democracy by challenging press freedoms. Perhaps not intentional, of course. The Home Office outlines that “[l]egitimate journalism or whistleblowing would not meet the requirements” of the espionage offences in the NSA 2023. But it is not the day-to-day activity of journalists under threat here. It is the ease with which this legislation could be applied to prevent a critical piece of investigative journalism exposing government corruption ever being published.
The NSA 2023 in action
Revisiting our example UK journalist working abroad, issues quickly arise with the broad nature of the new Act. Let’s break it down. By reporting on leaked or ‘protected information’, the journalist is, first ‘obtaining’ and, second, ‘disclosing’ said information, contrary to section 1(a). The journalist’s information relates to UK public funds and efforts to hide them in offshore jurisdictions. This is conceivably “prejudicial to the safety or interests of the UK”, as ‘UK public funds’ could relate to UK economic matters, contrary to section 1(b). Again, the breadth of the expression is of concern here. “Prejudicial to the safety or interests of the UK” arises from the 1964 decision in Chandler v DPP as meaning “contrary to what the Government of the day perceive those interests to be”, and has not been updated. This broad terminology inhibits journalistic clarity creating uncertainty of what can be reported on. As our example journalist is exposing government corruption, this ambiguity creates scope for government legislative exploitation, conflicting with several principles of the Rule of Law. Finally, the journalist is working under the financial backing of a foreign state broadcaster, or “an agency of a foreign government”, contrary to the new “foreign power condition” outlined in section 1(c) and defined in section 31.
It is easy to see, then, how this broad scope, together with the “grave” sanctions of potential life imprisonment, could discourage our journalist from taking the considerable risk to hold government accountable for their corrupt actions. This concern was echoed throughout the bill’s legislative process. Lord Black warned how these wide definitions could “criminalise one of the core functions of journalism: reporting on leaks of information about Governments, organisations and companies,” challenging press freedoms to expose institutional corruption and, ultimately, open democracy.
Public Interest Defence
Together with recommending specific updates to espionage laws concerning the unauthorised disclosure of information, the Law Commission’s report included an entire chapter justifying why a statutory public interest defence should be available to all, including journalists. The Law Commission provided the following overview: “A public interest defence would allow a defendant to justify their unauthorised disclosure on the broad basis that disclosure of information was in the public interest.” When explaining the distinct nature of a public interest defence, they continue to outline that “a true public interest defence is a justification of conduct and not an excuse for it”, which requires the court to find that the disclosure was in fact in the public interest, not merely that a journalist believed it to be. In the 2003 case of Reynolds v Times Newspapers Limited, Lord Nicholls expressed how this defence must be available to everyone, especially the media, emphasising its necessity to protect the basic common law right to freedom of expression, even before the emergence of human rights conventions. When explaining the necessary wide scope of the public interest defence, Lord Nicholls quoted Lord Denning M.R. from London Artists Ltd. v Littler [1969]:
“Whenever a matter is such as to affect people at large, so that they may be legitimately interested in, or concerned at, what is going on; or what may happen to them or others; then it is a matter of public interest on which everyone is entitled to make fair comment.”
The concept of a public interest defence was also raised during four separate committee stages. On 11th January, Lord Marks announced:
“We have all received a very large number of briefings calling for a public interest defence, and none of them has suggested that such a defence is a bad idea or that it would imperil national security.”
The NSA 2023 was enacted to “make provision about threats to national security”. The public interest defence is a necessary component of a democratic statutory framework, as it itself protects national security by allowing public interest journalism, whilst upholding the Rule of Law by holding government accountable when exercising the powers conferred on them. In written evidence to Parliament, ‘News Media Association’ endorsed this democratic necessity. It claimed the public interest defence enhances public accountability, enabling “matters of public interest to be scrutinised and debated” and allowing “malpractice to be exposed and addressed”. The question remains, why was it excluded?
Unpacking the Government’s perspective
Of course, the Home Office presents a different view: a public interest defence creates loopholes used for espionage by sophisticated state actors. The NSA 2023 factsheet explains how the offence requirements move it outside of the realm of ‘leaks’ and into ‘espionage’, mitigating any need for a public interest defence. It states:
“Including a public interest defence in any of the offences in part one of the bill strongly implies that acts of espionage could be in the public interest. Clearly acts of espionage against the UK can never be in the public interest.”
There are two main concerns here: the conceptual issue with labelling behaviour as ‘espionage’ and the lack of consistency in Government rhetoric.
1. Conceptual concern with behaviour labelled as ‘espionage’
Through the Home Office’s rationale, the UK Government has created new offences with broad definitions, unavoidably widening the net and consequently capturing specific instances of legitimate behaviour, such as our example journalist’s. That behaviour has subsequently been labelled as ‘espionage’, making it an offence. Essentially, it’s an offence because it’s espionage, and it’s espionage because it has been labelled as such, therefore it’s an offence. By labelling that behaviour as ‘espionage’, the Government is also free to assert that the ‘public interest’ justification could “never” be applied to such ‘offences’. This does not provide valid reasoning to use the term ‘espionage’ as a justification for excluding the public interest defence. It’s a circular and self-fulfilling argument. This threatens journalists’ Article 10 rights, no longer upholding the freedoms of the press, and so no longer upholding the principles of open democracy.
2. Contradictory Government rhetoric
The UK Government has expressed the importance of a public interest defence for upholding press freedoms numerous times, raising further questions about its contradictory exclusion in this legislation.
The Government’s “National Action Plan for the Safety of Journalists” outlines that for democratic press freedoms to be upheld, journalists must be able to “shine a light” on information which affects the public. This includes reporting on power abuses and corruption, whether authorised or not, without facing criminalisation. During his tenure as Prime-Minister, Boris Johnson offered support for the Plan and its protection of press freedoms, stating, “journalists must be able to go about their work without being threatened”. Justification for these reporting freedoms is that the information reported on is indeed ‘in the public interest’.
At a 2023 Warsaw Conference on the plight of journalism, the Government highlighted its disdain for the “politically motivated repression” of journalists. The statement outlined the link between the Russian Government’s decisions and actions, and the repression of the media, emphasising that “[corrupt] legislation can target any independent voice, particularly critics of government”, often resulting in the imprisonment of journalists. The UK Government should heed this concern within its own legislation. The press must be able to criticise corruption when it is in the public’s interest without the risk of imprisonment. As UK diplomat Anna Jackson declared in the opening line of the statement, “media freedom is essential to democracy, and democracy to media freedom”.
Let’s return to the example journalist once more. The public interest defence would allow unauthorised disclosure of protected information, providing it was in fact in the public’s interest, not merely that our journalist believed it to be. Given that Government ministers are public officials, abuse of public funds managed by ministers within HM Treasury would undeniably fall within the meaning of ‘public interest’, regardless of the journalist’s belief. Journalists and whistle-blowers must have a prescriptive method of holding government to account, within the realms of legislation.
It feels to me as if government needs to decide: either allow for the exclusion of a public interest defence by narrowing the scope of the offence requirements, increasing journalists’ clarity when reporting on leaked information, whilst fulfilling press freedoms, or; maintain the broad definitions, but introduce a public interest defence to enable journalists to legitimately publish ‘restricted’ public interest information, without being labelled spies.
Closing thoughts
So, is the example journalist performing legitimate journalism in a functioning democracy? As it stands under the NSA 2023, our journalist would be considered more of a spy than a champion of justice, prompting scrutiny as to whether it is the functionality of UK democracy in question here, rather than the legitimacy of this journalism. The NSA 2023 must be narrowed in scope to provide greater transparency for journalists reporting on matters in the public interest or incorporate a public interest defence to ensure press freedoms are upheld. Currently, it appears the emphasis of the Act may be on broadening avenues for corruption as opposed to safeguarding the pillars of democracy.
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