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First They Came for the Whistleblowers, Then They Came for Journalists

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The sentencing of Chelsea Manning to 35 years imprisonment for leaking comes off the back of a series of legal and extra-legal attacks against those who speak truth to power. In his reflections on the latest scandal to involve the NSA whistleblower Edward Snowden, the Guardian's editor Alan Rusbridger revealed that security service personnel were admitted to his newspaper's offices in order to oversee the destruction of sensitive journalistic material. It is unlikely that Mr Rusbridger expected the extent of shock and outrage at this apparent capitulation and it prompted a home page leader explaining and justifying his decision.

Whether or not the Guardian has been 'chilled' by the build up of threats and intimidation emanating from the state, one thing has been made abundantly clear by events over the last week: the real threat to press freedom in Britain stems not from any statutory regulation of the press - against which editors have waged a sustained and indignant campaign over the last year. It stems rather from the application and abuse of existing legislation and norms. This has long been the case in respect of the UK's repressive libel regime, which places the burden of proof on journalists and has enabled private individuals and corporations to both muzzle and deter their media critics.

Part of the problem with gagging orders, or 'prior restraint' on journalists, is that we have no idea of their extent. A report by Judges in 2011 revealed that there is no publicly held records concerning the number of injunctions or 'super-injunctions' issued. Even if there were, we would still have no idea as to how many stories are quashed by the threat of legal action. Alex Thompson, chief correspondent of the Channel 4 News, referred to one example when I interviewed him in 2011:

I had a story recently where there was a possibility of an injunction from the [Ministry of Defence] and the advice I got in no uncertain terms was we do not want this to go to an injunction. We don't want to be injuncted over this because it's going to cost us a lot of money.

Even if journalists do manage to get the story out, there is a danger that their bosses will capitulate in the face of libel threats which can scupper on-going journalistic scrutiny. According to one senior BBC journalist that I spoke to in 2011:

The BBC in recent years has been too quick to cave in and pay out on these cases and that is a real problem. I can't go into details but there is one case that I'm thinking about [...] where the BBC settled in our view far too early and amongst the journalists I work with it raised big questions about really whether the BBC was prepared to be robust enough and fight, and what it would mean to actually settle this case early. Because often settling cases early may be a way of limiting your ultimate losses in the libel courts, but it also has a chilling effect because you can't go back and investigate those people again.

In general, the state tends to use legal and extra-legal mechanisms other than libel laws when seeking to restrain the media, and with varying degrees of success. Following the Australian publication of Spycatcher in 1985 (by ex-MI5 officer Peter Wright), the Thatcher government issued a series of gagging orders on the press and when that didn't work, they attempted to sue offending newspapers for contempt of court. Like Edward Snowden, Wright's revelations suggested the services were out of control, and included details of an alleged plot against former Labour Prime Minister Harold Wilson. Eventually, the bans were lifted but in 1991, the European Court of Human Rights ruled that the British government had breached the European Convention of Human Rights in regards to its dealings with the press.

In 2006, the former UK ambassador to Uzbhekistan attempted to publicise documents supporting his allegations that the British government were complicit in human rights violations. Having been forced to release the documents under both the Freedom of Information and Data Protection Acts, the government resorted to banning them using an obscure application of copyright law.

But perhaps far more effective than bans or gagging orders are the 'advisory' means by which successive governments have sought to silence the media. In 2004, the attorney general famously issued a 'warning' to editors not to publish details of a memo suggesting the US government was considering an attack on the middle east broadcaster, Al Jazeera. In a chilling precursor to Rusbridger's revelations this week, the attorney general's note read

You are reminded that to publish the contents of a document which is known to have been unlawfully disclosed by a crown servant is in itself a breach of section 5 of the Official Secrets Act 1989.

Formally, the D-Notice committee circulates regular cautions to editors in respect of sensitive cases. Though much of this advice may be legitimate, a notice issued in response to the Snowden allegations was, according to the Guardian at least, an attempt to quieten on-going reportage of the NSA scandal. It certainly provides one plausible explanation as to why the rest of the British media have remained conspicuously silent over some of the most controversial allegations that have emerged from the leak.

Whatever the extent of the chilling effect, Alan Rusbridger's revelations this week constitute a new chapter in a long and painful history of state interference with the media. The range of legal loopholes and conventions exploited by successive governments lays bare the illusion that the British press have been free "for more than 300 years". It is now more imperative than ever that journalists, campaigners and media critics put aside their mutual distrust and act in concert to oppose the real and present threats to journalistic freedom.

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