Over at the Guardian there is an important article – which is also worth reading just for its byline
A rare sighting in the wild of Duncans Campbell
The article in turn refers to this government consultation document.
The document is interesting (and worrying) in many ways – but one significant feature is how it shows the state has realised that the old state secrecy model in unsustainable in the new technological and media context.
The concern primarily used to be about what could be done by means of espionage.
And this generally made sense, as the means of publication and broadcast were in the hands of the few.
Now the bigger threat is mass-publication to the world.
This is a particularly striking passage (which I have broken into paragraphs):
“…we do not consider that there is necessarily a distinction in severity between espionage and the most serious unauthorised disclosures, in the same way that there was in 1989.
“Although there are differences in the mechanics of and motivations behind espionage and unauthorised disclosure offences, there are cases where an unauthorised disclosure may be as or more serious, in terms of intent and/or damage.
“For example, documents made available online can now be accessed and utilised by a wide range of hostile actors simultaneously, whereas espionage will often only be to the benefit of a single state or actor.”
Unauthorised disclosure is, of course, at the heart of investigative journalism – indeed some define news as being what other people do not want to hear.
And there is already an offence in respect of unauthorised disclosure by third parties.
But that offence was enacted in the happy halcyon days of 1989 – the year incidentally that the WWW was conceived.
A time where the technological extent of unauthorised disclosure was Spycatcher being published as hard copy books in Australia.
So to a certain extent, the consultation paper is not new: the state still wants to control and prohibit what unauthorised third parties can disclose to the world.
What has changed, however, is the scale of potential disclosures – and that also has changed the priority of dealing with such onward disclosure.
But, as the Duncans Campbell aver, this reorientation of the law of official secrets needs to accord with the public interest in accountability and transparency.
In the consultation paper, ‘journalism’ is not mentioned – and ‘journalist’ is mentioned in passing twice.
The role of the media – and the rights and protections of those who publish information to the world – should instead be integral in any sensible regime of official secrets.
Else we will have the spectacle of the 2020s equivalent of the misconceived and illiberal (and preposterous and futile) Spycatcher injunctions of the 1980s.
Not having proper regard to the public interest in transparency and accountability in the making of any public policy – and especially in respect of national security and official secrets – means you have to deal with these foreseeable concerns later.
Journalism does not go away, just because you do not mention it and pretend it is not there.
Thank you for reading.
Please support this liberal constitutionalist blog – and please do not assume it can keep going without your support.
If you value this daily, free-to-read and independent legal and policy commentary for you and others please do support through the Paypal box above, or become a Patreon subscriber.
You can subscribe for each post to be sent by email at the subscription box above (on an internet browser) or on a pulldown list (on mobile).
This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
Comments are welcome, but they are pre-moderated.
Comments will not be published if irksome.