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06 September 2018

Lords Raise Concerns Over Journalists' Sources

Members of the House of Lords have raised concerns over the threat to journalists’ sources in new legislation designed to strengthen UK law enforcement agencies’ powers to seize information from people based outside the UK.

In a debate on The Crime (Overseas Production Orders) Bill, which is at Committee stage in the Lords, peers raised concerns about the potential for journalists’ sources to be compromised as a result of the new powers contained in the Bill.

In a briefing to Lords on the issue, the News Media Association warned that creating a distinction between “journalistic material” and “confidential journalistic material” was “artificial and dangerous.”

Under the draft legislation, notice of an application for production would only be required for material deemed to be “confidential” – a system which would rely on “the good faith” and “guesswork” of the applying agency, the NMA said.    

Addressing this in the debate, Lord Rosser, Labour, said: “Who will draw the distinction when making the application between confidential journalistic data and other journalistic data? How will they know what is confidential and what is not? Why did not the Government decide that any journalistic material should require an order to be made on notice and illuminate this problem?”

Lord Paddick, Liberal Democrat, added: “This begs the question: how does the judge make a judgment about whether there are reasonable grounds for believing that confidential journalistic material is involved? Does the judge take the word of the applicant? If the judge determines that confidential journalistic material is involved, how will notice be served on the parties concerned and how will those parties make representations?”

Lord Rosser also raised the issue of excluding material that has at any point been created or acquired to further a criminal purpose from the Bill’s definition of journalistic material.

He said: “That appears to apply, even if the criminal purpose never transpired and had nothing to do with the material being held by the journalist or how the journalist acquired it. Could not the issue of criminal intent be taken into account by the judge when deciding whether to make an order rather than an issue which loses the material to journalistic classification and with it its procedural protection?”

Separately, the NMA has also called for strong safeguards to protect journalistic material and to protect journalists’ sources against enforced disclosure in response to a Law Commission consultation on search warrants. 

The NMA welcomes the Law Commission’s proposals for reform of the search warrant system and warmly welcomed its specific proposals for extension of exemptions for journalistic material, confidential and non-confidential, from search warrants, whatever the statutory basis and whatever the investigating or regulatory authority.

But the NMA said it strongly opposed the any exception relating to "intention of furthering a criminal purpose" in respect of any provision relating to the protection of journalistic activities, sources or materials.

Allegations of criminal offences relating to disclosure of information - including the tougher laws proposed by the Law Commission’s own ’Protection of Official Data’ consultation - could be levied against journalists and their sources, stripping them of protection.

"Any ‘iniquity exception’ to exemption of special procedure and excluded material from search warrants or other access powers would be all too easily exploited and abused by those who wish to seize material, discover sources, disrupt investigation, delay or prevent publication," the NMA said. 

"In addition, any continued failure by police and court to ensure rigorous compliance with the law’s requirements  could lead to ‘rubber stamping’ of ‘iniquity exception’ applications."