A broad coalition of media organisations is backing an amendment to the so-called snooper’s charter which would provide protection across the bill for journalists and their sources.
The Investigatory Powers Bill goes to the report stage today, the last point at which amendments can be made to it in the House of Commons. It will then have a third reading in the Commons tomorrow before heading to the Lords.
The bill sets out wide-ranging powers for law enforcement agencies to view peoples’ internet browsing histories, emails and other communications data.
As it stands the bill provides one extra protection for journalists. It states that applications to view journalists’ telecoms data, made in order to identify their sources, must have the approval of a judicial commissioner.
But news organisations remain concerned that such applications will be made in secret, with no opportunity for journalists to argue the case against disclosure.
Lib Dem MP Alistair Carmichael has tabled an amendment that seeks to provide overall shield protection for journalists from state spying across the bill.
The amendment was drafted by Gavin Millar QC on behalf of the National Union of Journalists. It also has the support of the Society of Editors, publishers’ trade body the News Media Association, Guardian News and Media, the Media Lawyers Association, ITN and Press Gazette.
It states that all applications to view confidential journalistic material should follow the procedure already set out in the Police and Criminal Evidence Act. PACE includes provision for news organisations to argue the case against disclosure protecting their right to Freedom of Expression under Article 8 of the Human Rights Act.
Millar told Press Gazette: “The amendment I drafted is concerned with journalists as sources of information for the state. Not with journalists as suspects in criminal cases.
“The aim is to require the state to make an application to a judge if they want to access digital information of or relating to journalists. This would cover not only the content of digital documents, emails etc. but also their communications data.
“The journalist would be notified of the application and be able to argue against it before the judge – other than in exceptional circumstances (eg. where the delay for a hearing would jeopardise an urgent investigation).
“So like PACE, except under PACE the material sought is held by the journalist/media organisation. With digital communications and internet use it is held by the service provider.”
The dangers to press freedom posed by secret police grabs of telecoms data were highlighted in 2014 after the Met Police admitted it secretly accessed the call records of Sun journalists in order to find and punish lawful police sources.
This prompted the Press Gazette Save Our Sources campaign which led to the Interception of Communications Commissioner revealing widespread use of this police power against UK journalists and their sources.
Society of Editors executive director Bob Satchwell said: “The police have got to think twice rather than being cavalier about the importance of journalists’ sources and the role of journalists in society.
“The police ought to know about the importance of confidential sources because they have to protect their own.”
The NUJ amendment does not have the backing of either Labour or the Conservatives so it looks unlikely to succeed in the Commons.
Home Secretary Theresa May has offered to change the wording of the bill to ensure judges consider the “overriding public interest” before approving police telecoms grabs which identify journalists’ sources. But the NUJ has said that this concession does not go far enough.