Ciara Bottomley, press officer for Public Concern at Work, the whistleblowing charity, has written this article in support of Press Gazette's Save Our Sources campaign. Picture: Shutterstock
When did journalism become a crime? The ongoing trial of The Sun journalists sets a worrying precedent. News International’s decision to hand over names of confidential sources to Scotland Yard’s Operation Elveden suggests that the long arm of the law sees little sacred in the protection of sources.
But we should all be worried about recent developments around police surveillance of communications between journalists and their sources.
The misuse of the Regulation of Investigatory Powers Act 2000 (RIPA) to intercept such communications is cynical at best. At worst it undermines basic democratic principles, the freedom of the press and our right to free speech.
This law, initially designed to fetter police powers, is now being misused against whistleblowers. As an organisation that promotes public interest whistleblowing, this revelation is cause for serious concern.
It doesn’t take much to find a number of cases where RIPA has been used by those with a motive other than the detection of crime. Leak investigations, for example.
One need look no further than the case of Osita Mba, the HMRC whistleblower. Mba lifted the lid on a £10m ‘sweetheart deal’ between HMRC and Goldman Sachs by whistleblowing.
When HMRC suspected he had spoken to The Guardian his belongings, emails, internet search records and phone calls, and those of his then wife, were intercepted by HMRC.
More recently the sources in the Plebgate and Chris Huhne scandals have also been identified under RIPA. These examples are just the cases that make the headlines. According to the 2013 report of the Interception of Communications Commissioner, half a million authorisations for RIPA requests by UK public authorities were made last year.
Persecuting journalists and their sources sends a veiled threat to others who may be about to speak out.
It creates a chilling effect on whistleblowing and leaves a culture of silence in its wake. While individuals that raise concerns with the media have a responsibility to disclose reliable and reasonable information, they should (in most cases) be able to speak to journalists about abuse of authority, misuse of public funds, crime and corruption without thinking that the state is listening in.
Journalists should have both a right and a duty to protect sources. This is a long established rule in the UK and is certainly the case in Europe.
The European Court of Human Rights has emphasised that a journalist’s right not to reveal her or his sources is not a mere privilege to be granted or taken away depending on the lawfulness or unlawfulness of their sources, but a facet of the right to information, to be treated with the utmost caution.
At Public Concern at Work, we know the importance of providing a safe haven for whistleblowers to speak frankly about their concerns. We operate a legally privileged advice line for whistleblowers. Last year PCaW advised 1,349 whistleblowers, and many calls involved questions around the issue of confidentiality.
Of the whistleblowers that had already raised concerns at the point of contact, 3 per cent of our callers raised concerns anonymously, 17 per cent confidentially and 81 per cent were open about their identity when they blew the whistle.
From our perspective openness is a positive development and signals a cultural change, that more individuals feel confident about speaking up and whistleblowing is losing its negative connotations.
This also reflects the legal protection in the UK. While there is protection for individuals that blow the whistle to the media, the Public Interest Disclosure Act 1998 most readily protects individuals raising concerns at a local level. Where an individual blows the whistle openly, it is easier to attribute any detriment suffered to the disclosures made.
That is not to underestimate the assurance raising matters anonymously or confidentially can offer some individuals, particularly where sensitive material or serious issues are involved. The cloak of anonymity will often be used where an individual does not feel safe.
Sources that wish to shield their identity may be workers within government or part of powerful institutions that have witnessed abuse or wrongdoing and speak to journalists in order to hold power to account. They fear retaliation, retribution, job loss or legal consequences.
Without assuring those that expose these issues that their identity will be protected, serious wrongdoing and malpractice may never be revealed.
Since Edward Snowden’s revelations we are seeing mission creep. The criminal law is being used to target journalists and their sources. The use of RIPA to intercept journalists’ and whistleblowers’ communications, the detention of David Miranda under the Terrorism Act 2000 and the resurrection of the antiquated common law offence of misconduct in public office all seriously undermine freedom of expression and contradict the Government’s stance that whistleblowers should be encouraged and protected.
These developments are particularly difficult to reconcile with Prime Minister David Cameron’s own statement: "We will always back whistleblowers when they challenge poor standards, particularly in large organisations."
The misuse of RIPA is an affront to liberal values we hold dear; freedom of press, democracy and the tradition of dissent.