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28 June 2018

NMA Calls For Stronger Journalistic Protections In Counter Terrorism Regime

Protections for journalism must be strengthened under the new counter terrorism regime to allow journalists to properly research and investigate high public interest stories about terrorism, the News Media Association has warned.

In written evidence to the Committee on the Counter-Terrorism and Border Security Bill, the NMA warned that new powers to stop and question people during border crossings would seriously endanger journalistic sources unless robust safeguards for journalism were introduced. 

The Bill appears to be an attempt to codify and legitimise the powers to stop, question and detain that were condemned by the Court of Appeal in the case of journalist David Miranda, who was detained at Heathrow Airport in 2013 for carrying files related to information obtained by Edward Snowden.

Delivering the judgement in that case, the Court said that, if used to obtain journalistic information such as sources, the stop power would be incompatible with Article 10 of the European Convention on Human Rights. 

However, the Counter-Terrorism Bill proposes codifying these powers, without adding for protections against the revelation of journalists’ sources.  Under the Bill, anyone can be stopped and forced to answer questions at the border, and hand over and information or documents they have, and refusing to cooperate is a criminal offence.

The NMA said: “There is no right to contact a lawyer or obtain legal advice, there is no exception to allow for refusal to protect the identity of a source, and it is an offence to refuse to answer or otherwise obstructs any such questioning or requests for document production.  This does not allow journalists to protect the identity of their sources. 

"If they refuse to answer a question or produce a document because it would reveal the identity of a source, they would be guilty of an offence.  This is so even if the examining officer does not have grounds for suspecting that the person is or has been engaged in hostile activity.

"A journalist could be guilty of an offence for refusing to identify a source, even if there was no reason to ask the question.  This flies in the face of the protection for journalists that the Miranda case held to be vital.”

Under the Bill, the offence of collecting material likely to be of use in an act of terrorism would be extended to include viewing terrorism videos three or more times on the internet, making it vital for adequate safeguards to be included for journalists researching terrorism online. The current offence has the defence of “reasonable excuse”, but this has not been explicitly extended to cover the provisions contained in the Bill.

“Terrorism is a matter of great public importance, and so it is the duty of journalists to report on it.  Investigations may require them to watch or access propaganda and other materials that, but for this defence, would make them guilty of an offence. 

“The defence is therefore crucial to protect journalists carrying out their democratic function, and it must be applied fully to any extension of the offence,” the NMA said.

The Bill also contains provisions which would grant “a significant amount of discretionary power” to the Secretary of State over fundamental rights issues, including freedom of expression and press freedom meaning that there may not be proper scrutiny of future provisions.  

“This creates a risk that primary legislation – the highest law of the land – could be changed in a way that is detrimental to fundamental human rights, without proper Parliamentary scrutiny and input from expert stakeholders,” the NMA said, adding that the provisions should be removed from the Bill.

“The protection of journalists’ sources and journalistic material is vital in a functioning democracy, and the scope and breadth of some of the offences and powers in the Bill are unjustifiable,” NMA added.  

“This Bill creates broad offences, and provides for broad, discretionary powers, both of which threaten the ability of journalists to protect their sources. Only by protecting journalism at every stage can the powers within this Bill meet the requirements of the freedom of expression."