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06 September 2018

Government Responds To NMA Concerns Around New Counter Terrorism Regime

The Government has responded to the News Media Association’s concerns around the new counter terrorism regime’s chilling effect on investigative journalism.

In July, the NMA wrote to Home Office Minister Ben Wallace to voice concerns around proposals to make it a criminal offence to view terrorism material online because of the chilling effect on legitimate investigative journalism in the public interest.

The NMA also warned that provisions in the Counter Terrorism and Border Security Bill for new border stop and search powers could endanger journalistic sources. In his response, Mr Wallace outlined the safeguards in the Code of Practice for the stop and search powers which will be published in the autumn.

Mr Wallace said: “The Schedule 3 Code of Practice will make clear that an examining officer should cease reviewing, and not copy, information which they have reasonable grounds for believing is confidential (including journalistic material).

“They may only examine such material where the Investigatory Powers Commissioner has determined that it could be used in connection with a hostile act or for the purpose of preventing death or significant injury.”

New amendments tabled this week by Labour MP Nick Thomas-Symonds would further strengthen transparency around stop and search by introducing a requirement for the Investigatory Powers Commissioner to produce an annual report on the use of the powers and requiring that the Commissioner must be informed when someone is stopped using these powers.

But the NMA remains concerned that the Bill does not include sufficiently robust and explicit safeguards for journalists who may be viewing terrorist material online as part of researching a story in the public interest.

New amendments tabled this week by Home Secretary Sajid Javid have removed the requirement for material to be removed three or more times to be a criminal offence and attempted to make clear the circumstances in which a “reasonable excuse” for viewing such material would apply.

In his letter to the NMA this week, Mr Wallace said that these amendments had been tabled to address the “valid concerns” around the proposals.  

He stressed that journalists will be able to make use of the reasonable excuse defence as they have up until now, stating: "It is clear that legitimate journalism is always likely to constitute a reasonable excuse for the purpose of the Section 58 defence."

Mr Wallace added: “The Government recognises that valid concerns have been raised about the requirement that terrorist material be viewed three times. The intention behind this was to ensure proportionality, and to provide a safeguard for those who might inadvertently access such material. But we recognise the difficulties underlying that approach, including the arbitrary nature of the number and the uncertainty around how it would be implemented.

“In light of this, we have tabled amendments to the Bill that will remove this provision and replace it with a clearer and more certain safeguard with a similar effect. This will make it clear on the face of the legislation that the offence will not be committed if the person does not know, and has no reason to believe, that the information they are accessing is likely to be useful to a terrorist.

But the NMA remains concerned that the Bill lacks explicit safeguards for journalism and is set to write to MPs to outline these issues.