(European Civic Forum on CIVICUS Monitor) On 12th February 2019, two problematic freedom of expression bills – the Counter-Terrorism and Border Security Bill and the Crime (Overseas Production Orders) Bill – were enacted, despite strong concerns by civil society, press freedom organisations and opposition parties. These groups argued that these two laws fall short of ensuring journalistic safeguards and may result in censorship and obstructing the investigative work of journalists.
The National Union of Journalists (NUJ), General Secretary Michelle Stanistreet, denounced the new legislative moves by the UK Government saying it has “repeatedly demonstrated its contempt for journalism and disregard for press freedom” through laws which “undermine and compromise the ability of journalists to carry out their work with integrity and in safety”.
The Crime (Overseas Production Orders) Act will enable police and prosecutors to more easily access electronic data held by overseas service providers – such as social media and email companies – where an international agreement is in place. Amendments to the bill added by Parliament on 30th January 2019 that guarantee journalists will be notified when their data is sought and giving them or their media organisation the opportunity to challenge the order in court, has been welcomed. However media freedom watchdogs still warn that there are other remaining concernsaround media freedom. Rebecca Vincent, UK bureau director for Reporters Without Borders (Reporters Sans Frontieres), told the media that “the addition of a notification for journalists was a minor improvement but that broader concerns remained“. She further noted that: “It is worrying that so little attention was paid to the press freedom implications of the Crime (Overseas Production Orders) Act, which threatens the ability of journalists to secure their data and guarantee source protection.”
The Counter-Terrorism and Border Security Bill contains some vague concepts and criminalises certain acts that can restrict freedom of expression. This includes criminalising the expression of an opinion or belief that is “supportive” of a proscribed (terrorist) organisation if done in a way that is “reckless” as to whether it encourages another person to support a proscribed organisation. It also makes it an offence to publish a photo or video clip of clothes or an item such as a flag in a way that raises “reasonable suspicion” (a low legal threshold) that the person doing so is a member or supporter of a terrorist organisation. Additionally, the Counter-Terrorism and Border Security Bill, make it a crime to view terrorist material online or travel to an area designated as a terrorist threat to the UK, although it including some journalistic defences following lobbying by media rights groups. The law also raises concerns over the extended powers “allowing officers to stop, search and detain anyone at the UK border, without grounds for suspicion, to determine if they are a threat to national security“. The act contains some safeguards for the press, but only in relation to “confidential” journalistic material.
Additionally, following an intense campaigning by humanitarian groups, the Counter-Terrorism and Border Security Bill also exempts aid workers from the clause that criminalises British nationals that enter or remain in designated countries and regions, considered as conflict zones. This has been recognised as “an important win for the NGO and humanitarian sector” which would “no longer have to fear being charged with a criminal offense for simply trying to do their jobs”, according to Rowan Popplewell, policy manager at Bond, which represents more than 400 U.K. aid organisations. However, concerns remain as peacebuilding had not been explicitly identified as an exemption from this clause and might restrict peacebuilding activities such as “bringing factions together for dialogue or engaging religious leaders” as this might not be covered by the humanitarian exemption.
The Mandate of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, in a submission to the House of Commons Public Bill Committee, dated 17th July 2018, said that the Counter-Terrorism and Border Security bill “runs the risk of criminalising a broad range of legitimate behaviour, including reporting by journalists, civil society organisations or human rights activists as well as academic and other research activity”.
The NGO, Index on Censorship’s Head of Advocacy Joy Hyvarinen also commented:
“The Counter-Terrorism and Border Security Act crosses a line that takes the law very close to prohibiting opinions.”
In August 2018, the CIVICUS Monitor had reported that rights groups and the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism raised concerns about the implications of the bill for the protection of journalistic sources. In October 2018, nine organisations called on the House of Lords to amend the bill. Civil society found the amendments insufficient.
In September 2018, the Representative on Freedom of the Media, in the Organisation for Security and Co-operation in Europe’s (OSCE) also raised concerns regarding the Counter-Terrorism and Border Security Bill saying that the definitions are too broad and that: “As it stands, the law could have an impact on the freedom of the media.” and that “the provision has the potential to criminalise a too broad range of behaviour, and risks creating a chilling effect on journalistic freedom to report on the concerned organisation.” The OSCE further called for “strict and independent judicial oversight” of any new powers along with “adequate safeguards against their abuse.”