UK - It’s official: 'journalism is not terrorism'

by Jane Whyatt
Britain's Court of Appeal has ruled that the UK's Terrorism Act is not compatible with human rights, and more protection is needed for journalists and their confidential sources and materials.

David Miranda David Miranda, Picture by The Intercept

But the court ruled the authorities were justified in detaining reporter David Miranda at Heathrow airport and seizing his laptop and files.

It happened in 2013 when Miranda was working with Glenn Greenwald and Laura Poitras to publish secrets from Britain’s GCHQ and the US National Security Agency, leaked by the NSA whistleblower Edward Snowden.

Interviewed by ECPMF in 2015 as he launched a wordwide call for a new Treaty to outlaw mass surveillance, David Miranda said he was traumatised by the incident. He was held in solitary confinement for almost eight hours before being released and put on a plane to Brazil, where he works with Greenwald.

Hear the interview here.

Welcoming the judgment, ECPMF Legal Advisor Flutura Kusari welcomes the judgments and encourages other EU governments to provide adequate legislative and judicial safeguards for journalistic sources.

"By detaining David Miranda and seizing his journalistic materials, the UK has flagrantly endangered the confidentiality of journalistic sources involved in this case. In addition, this action has a far-reaching negative effect because it has set a bad example - especially for new democracies such as the South East Europe countries that often see the UK, Germany and Belgium as European states where freedom of expression is guaranteed and respected.

There is a tendency in several European countries to adopt harsher and stricter laws in the name of terrorism and it is clear that such justification is also being used to interfere with media freedom. This judgement should serve as an alarm. It should encourage governments across Europe to put in place proper safeguards for journalistic materials."

The case was brought by a group of human rights organisations  including First Look Media, parent company of Glenn Greenwald’s online newspaper The Intercept, Article 19, English PEN and Liberty, the London-based human rights campaign. This is how Liberty assesses its significance:

Fact Box

In its intervention, Liberty argued that Schedule 7 (oft he Terrorism Act) is unlawful because it is not subject to sufficient legal safeguards to prevent it from being used arbitrarily against journalists and in such a way that it interferes unjustifiably with the fundamental right to freedom of expression.

In his judgment (with which Lord Justice Richards and Lord Justice Floyd agreed), Lord Dyson, the Master of the Rolls, states that:

  • "If journalists and their sources can have no expectation of confidentiality, they may decide against providing information on sensitive matters of public interest. That is why the confidentiality of such information is so important." (Paragraph 113)
  • "In disagreement with the Divisional Court, I would declare that the stop power conferred by para 2(1) of Schedule 7 is incompatible with article 10 of the Convention in relation to journalistic material in that it is not subject to adequate safeguards against its arbitrary exercise and I would, therefore, allow the appeal in relation to that issue. It will be for Parliament to provide such protection." (Paragraph 119)

"The most obvious safeguard would be some form of judicial or other independent and impartial scrutiny conducted in such a way as to protect the confidentiality in the material." (Paragraph 119).

Lawyer Katie Goold, of London firm Bindmans represented David Miranda in court. She commented:

The notion of a journalist becoming an "accidental terrorist" has been whole-heartedly rejected. We welcome this court's principled and decisive ruling that Schedule 7 needs to come in line with other legislation to ensure that the seizure of journalistic material is protected by judicial safeguards.

And on Twitter David Miranda himself expressed his relief:

Jane Whyatt, Project Manager of ECPMF