Secret agenda

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It is now more than 20 years since The Guardian and The Observer fought off attempts by the UK government to force them to hand over documents in the case of MI5 whistleblower David Shayler. At a judicial review, Judge Igor Judge concluded that demands to hand over journalistic material “would have a devastating and stifling effect on the proper investigation of the … story”.

The case reinforced the special status of journalistic sources in law – even in official secrecy cases – and established the principle that the police should not use journalists as informers.

As the Observer journalist responsible for writing the stories about Shayler’s disclosures, which included allegations of the involvement of UK intelligence in a plot to topple Libya’s Muammar Gaddafi, I was particularly concerned to see the latest proposals for the reform of the Official Secrets Act.

These include enhanced search powers to give police access to just the sort of journalistic “special procedure material” (notes, emails and recorded interviews) we fought so hard to keep from the police two decades ago. The new OSA would thus enshrine in law the “devastating and stifling effect” on journalism that so concerned Judge.

Much has happened in the two decades since The Guardian and The Observer’s principled stand in the High Court. The growth of digital technology, the emergence of global Islamist terrorism and the increased national security threat to the UK from Russia and China have given the government good arguments for reform of legislation that was enacted when the world wide web was in its infancy.

But the new act is authoritarianism by stealth – a full-on assault on media freedom, carefully hidden behind an apparently reasonable desire for reform.

The National Union of Journalists has rightly sounded the alarm over plans to increase the maximum prison sentence for breaches of the OSA, which currently stands at two years. This will have significant chilling effect on journalists investigating government wrongdoing and their civil servant sources. More worrying still is the distinction now being made between espionage and so-called “unauthorised disclosure offences” (ie, leaks to journalists). As the consultation makes clear, this government believes “there are cases where an unauthorised disclosure may be as, or more, serious in terms of intent and/or damage”. The argument is that a large-scale digital disclosure could benefit a number of hostile actors, whereas espionage is usually carried out by a single state. The effect, in practice, is that a journalist in receipt of secret documents could face a longer sentence than a spy.

Where the government really lets its authoritarian slip show, however, is in a section of the consultation about the number of successful prosecutions under existing legislation. The truth is that the record here is woeful. The government argument is as follows: “This is primarily due to the sensitive nature of the evidence that would typically be required to be disclosed in order to bring prosecutions, but also because of the age of the legislation, which means many of the offences are not designed for the modern world. Prosecutions, as a result, are challenging and rare.”

This is patent nonsense. In most cases, Official Secrets prosecutions fail because they should not have been brought in the first place.

Since the Shayler case, I have been involved in two other high-profile Official Secrets cases, both of which eventually collapsed. The first concerned Katharine Gun, a GCHQ whistleblower, who leaked details to The Observer of a covert US/UK operation to fix the vote at the UN Security Council in advance of the Iraq War in 2003.

As the recent film of the case – Official Secrets – made clear, the problem was not disclosure of evidence of the crime (Gun confessed to the leak) but disclosure that would lead to ministerial embarrassment about the legality of the war.

The second case involved a Foreign Office official, Derek Pasquill, who leaked details of government policy on radical Islam in 2006. Here again, the trial did not collapse over evidential disclosure. In this case there were serious questions over whether any of his disclosures should have been covered by the OSA in the first place.

For those who care about free speech, civil liberties and democracy, the most serious concern should be the resistance of the government to a public interest defence in such cases. This is where the British state and the British people come into direct conflict.

In the cases of Gun and Pasquill, there is no doubt they acted in the public interest to reveal uncomfortable truths for the government. Their revelations served not just the public interest but the national interest. If the new legislation had been in place at the time, it is quite possible that Gun and Pasquill would both have been sent to prison.

Boris Johnson, the UK’s journalist prime minister, has said he doesn’t want to see a world where people are prosecuted for doing their public duty. I look forward to his column condemning his government’s own Official Secrets proposals, which will create just that nightmare world.

This piece first appeared in the British Journalism Review


Freedom of expression and disabilities

What does freedom of expression mean for someone with a disability?

The United Nations’ Convention on the Rights of Persons with Disabilities was adopted in 2006, and has now been signed by 82 countries. The convention amongst the document’s 50 articles, there is one that specifically guarantees disabled persons the right to freedom of expression:

States Parties shall take all appropriate measures to ensure that persons with disabilities can exercise the right to freedom of expression and opinion, including the freedom to seek, receive and impart information and ideas on an equal basis with others and through all forms of communication of their choice, as defined in article 2 of the present Convention, including by:

a) Providing information intended for the general public to persons with disabilities in accessible formats and technologies appropriate to different kinds of disabilities in a timely manner and without additional cost;

b) Accepting and facilitating the use of sign languages, Braille, augmentative and alternative communication, and all other accessible means, modes and formats of communication of their choice by persons with disabilities in official interactions;

c) Urging private entities that provide services to the general public, including through the Internet, to provide information and services in accessible and usable formats for persons with disabilities;

d) Encouraging the mass media, including providers of information through the Internet, to make their services accessible to persons with disabilities;

e) Recognizing and promoting the use of sign languages.


The United Kingdom is one of the countries that has ratified the convention, and statistics on media literacy for disabled persons in the UK shows just how important it is to increase access to information across different channels. According to the UK regulator Ofcom, 64 per cent of disabled persons use television as a source of news, and are more likely than their able-bodied counterparts to rely on one source for news.

According to Jo Roach, who has worked with people with learning disabilities for over 30 years, freedom of expression hinges on having equipment and support workers who can “understand the person’s needs”. Roach says that the support worker is key to learning how to use things like the internet.

“If support workers aren’t well-informed, you aren’t well-informed,” says Roach.

This is particularly important when thinking of ever-advancing mobile phone access and capabilities: while internet usage for disabled persons currently sits at 62 per cent, mobile phone access is 82 per cent. Most disabled people under 65 use mobile phones for calls and text messages. With smartphone penetration on the rise in the UK, there are possibilities for increasing accessibility for disabled persons — but this relies entirely on access to not only the equipment, but tailored training on how to use it.

Smartphones open up the doors to apps catering to disabled persons, and this is already being explored. For example, the voice-operated “Georgie” app, which helps blind users find buses or navigate. The UK’s Department for Work and Pensions recently announced a plan to train 200 people to use the application. Apple’s iPhone has been celebrated for the usability of its “assistive” features, and this also increases options for developers of apps.

But there is still a long way to go: the head of London-based accessibility consultancy Hassell Inclusion, Jonathan Hassell, told the Guardian that a narrow definition of accessibility could also be a barrier:

“In audience terms, the needs of the small audience of totally blind people are being catered for well, whereas the needs of the much larger audience of people with more moderate vision difficulties, probably because of ageing, seems to be being ignored.”

While this is a slow process, it will surely improve in the coming years.

The beat goes on?

Music has always been a medium to stir up controversy — from glass harmonicas being banned briefly in the 18th century for driving people mad, to the censoring of Elvis Presley’s wiggling hips on the US-based Ed Sullivan show in 1957.  Censorship in the music industry is no relic of the past. Only this month, Egyptian authorities announced a bar on “romantic music”. Here are our favourite modern examples of banned music:

Taming the rave

Authorities in England and Wales attempted to curb the fun in 1994, introducing the Criminal Justice and Public Order Act. This defined raves as “illegal gatherings,” putting a stop to any electronic music one might to listen to at an outdoor party. The Act defines banned music as including “sounds wholly or predominantly characterised by the emission of a succession of repetitive beats.” 18 years after the act was introduced, the parties still appear in their masses — as do the police. Here’s Norfolk Police bashing away at some rave equipment following an order for destruction by request of the court:

Sensuality censored

In a bid to halt “vulgarity and bad taste”, music lovers in Cuba were hit with a tough sanction in December: a complete ban of the sexually-charged reggaeton music in the media. Other music genres with aggressive or sexually explicit lyrics will also be curbed, preventing the songs from being played on television or radio. Under legislation passed under President Raul Castro, music can be enjoyed privately, but will also be banned in public spaces — anyone discovered to be breaking the law could be subject to severe fines and suspensions. According to Cuban Music Institute boss Orlando Vistel Columbié, the music genre violates  the “inherent sensuality” of Cuban women. One of the most well-known reggaeton artists is the Puerto Rican born artist Daddy Yankee. Here’s his 2004 hit, Gasolina, which probably wasn’t an anthem for rising petrol prices:

Singing a song of silence

On 23 October 2012, Islamist militants took control of a country steeped in musical history, imposing a total ban of all genres of music in northern Mali. The rebel group jammed radio airwaves and confiscated mobile phones, replacing ringtones with verses from the Quran. Three Islamist groups linked to al-Qaeda have taken control of the northern Malian cities of Timbuktu, Kidal and Gao, banning everything they deemed to breach the religious law of Islam, Sharia. Dozens of musicians have fled the area, and many have been threatened with violence should they practice music again. Mali is famed for its rich cultural heritage and many residing there consider music akin to material wealth. Musician Khaira Arby has fled south since the crisis. Here she is with her band Sourgou:

Careless whispers from Iranian government

Iran had a pop at western music in 2005, decreeing it illegal, along with other “offensive” music. The Supreme Cultural Revolutionary Council banned the music from state-run radio and TV broadcasts. The sounds of Eric Clapton, The Eagles and George Michael were often used as television background music until the ban was imposed. President Mahmoud Ahmadinejad left no 80s hallmark unscathed — banning western haircuts like the mullet two years later. George Michael’s 1984 single, Careless Whisper, breaks Iranian law with both music and hairstyles:

Romancing the state

On 13 December, Egyptian authorities banned the broadcast of “romantic” music, insisting that only songs enamoured with the state would be permitted for playing on TV stations. Only nationalistic numbers can now be played on the 23 state-owned channels, and songs mocking public figures will be banned to adhere to the “sensitivity” of the political situation in Egypt. President Mohammed Morsi fervently denied that a decree granting him sweeping powers was permanent recently. Complaints have begun to surface surrounding the musical censorship, with some speculating that it was a move to mask the development of the decree. Egyptian megastar Amr Diab’s most well-known hit, Habibi Ya Nour Al Ain (Darling, You Are The Light of My Eyes), is just one of the many tunes that won’t be heard on the country’s airwaves:

Daisy Williams is an editorial intern at Index. 

Social media guidelines: Nice start, but still a long way to go

Keir Starmer’s social media interim guidelines appear sensible enough, which is more than can be said for the controversial cases that led to the Director of Public Prosecutions’ consultation.

Index took part in that consultation back in October. I wrote at the time Starmer was adamant that the ruling in the Paul Chambers appeal (which overturned his 2010 conviction for jokingly tweeting that he would blow an airport “sky high”) was not to be seen as any sort of precedent. Yet in the guidelines published today, Starmer cites the two passages in that ruling that seemed to provide most protection for free speech, which noted:

…a message which does not create fear or apprehension in those to whom it is communicated, or may reasonably be expected to see it, falls outside [section 127(i)(a) of the Communications Act 2003], for the simple reason that the message lacks menace.


Satirical, or iconoclastic, or rude comment, the expression of unpopular or unfashionable opinion about serious or trivial matters, banter or humour, even if distasteful to some or painful to those subjected to it should and no doubt will continue at their customary level, quite undiminished by [section 127].

So it would seem there’s been a slight change of mind, which is entirely reasonable and welcome (though on Twitter Chambers’ partner Sarah Tonner seems a little annoyed by this apparent switch).

Apart from that, what else have we got to discuss in these interim guidelines? Well, there’s a slight shift away from the use of the controversial section 127 of the Communications Act. At the consultation I attended, the various representatives, from diverse groups including anti-bullying and anti-harassment bodies, were keen to stress that section 127 was not appropriate for social media, and that it would be better to focus on patterns of harassment, abuse etc, and prosecute, if necessary, under anti-harassment laws such as the Protection from Harassment Act 1997. This is welcome – too often we focus on the medium rather than the behaviour.

More generally, there’s much on high thresholds on prosecution, and clear identification of public interest, perhaps not evident in the prosecutions of people such as Liam Stacey (sentenced to 56 days in prison for a “racially aggravated public order offence” after tweeting a poor taste joke about footballer Fabrice Muamba).

There is not much on the difference between “merely offensive”, which may not merit a prosecution, and “grossly offensive”, which could. As so often, this comes down to the probable perception of a right-thinking person. As in definitions of “obscenity” it seems a case of “I know it when I see it”.

There is a worry in the suggestion that removal of offensive posts by ISPs may provide a defence against prosecution.

While Facebook, Twitter et al will sometimes remove posts off their own bat, there is no absolute uniform system, and due to the sheer volume of traffic on social networks every day, some posts will slip through and others will be removed prematurely or inappropriately. Furthermore, this contains the germ of a suggestion of third-party liability, in which ISPs are held responsible for content. It will be crucial to examine this in the three-month public consultation on the guidelines which open today. It will also be worth examining whether section 127 of the Communications Act is appropriate at all in social media cases.

A decent start then, but more to be done.

Padraig Reidy is news editor at Index. Follow him on Twitter: @mepadraigreidy

More on this story:
Read the guidelines in full here
Graham Linehan on the Twitter Joke Trial
Paul Sinha on a tale of two tweets
Do western democracies protect free speech?