Protections for whistleblowers have become “ineffective” in the digital era thanks to stricter laws governing those attempting to leak national security information, a new study reveals.
According to research by the Institute of Advanced Legal Studies (IALS) at the University of London, journalists receiving information from whistleblowers find it increasingly difficult to maintain their sources’ anonymity because of the major interception of phone and online activities.
The study follows a proposal earlier this month to significantly increase prison sentences for those found leaking official information.
“Legal protections [for whistleblowers] have become ineffective,” the report Protecting Sources and Whistleblowers in a Digital Age said.
“If covert powers are used, a journalist and a source will not know this has occurred – intrusion may become apparent only if the material is used in legal proceedings.”
The study also criticised the proposed update to the Official Secret Act, as the legislation entails scraping the public interest defense.
Judith Townend and Richard Danbury from the IALS called the update “unnecessary” and said: “A consolidating act that replicates the deficiencies of already existing [Official Secrets Act] law is no improvement on the existing law, and the absence of a public interest defense in actions that relate to whistleblowing of officially secret material is – in our view – a significant omission.”
The study also pointed out failures in the newly implemented Investigatory Powers Act 2016 (IPA), as it claims that any communications metadata belongs to the telecom provider, not the journalist.
Critics of the IPA, or ‘snooper’s charter’ as it is known to its detractors, claim it threatens people’s right to privacy by granting indiscriminate surveillance power to the state.
Guardian editor-in-chief Katharine Viner said: “At a time when journalistic protections are more important than ever, the UK parliament has just passed [the Investigatory Powers Act] that brings in one of the most draconian surveillance regimes anywhere in the world.
“It enables law enforcement and agencies to access journalists’ data without the journalists ever knowing.”
The report also highlights weaknesses in the digital economy bill which is currently passing through Parliament, as although it does grant a public interest defence, its adoption is relative to how cases will be interpreted in court.
“It is a thorny legal problem about what should be considered as ‘journalism,’ and so it is difficult to predict who – or what activity – will benefit from this defense.
“Additionally, even if journalists are better protected in law, we must not neglect the question of whether sources and whistleblowers are adequately protected.”
Protecting sources’ information, a practice supported by the National Union of Journalists (NUJ) in its code of conduct, is a principal for which journalists have risked jail.
Gill Phillips, the Guardian’s editorial legal director, who contributed to the report, said: “Existing legal source protection framework [for whistleblowers] in the UK is being eroded by national security and anti-terrorism legislation, undercut by surveillance and jeopardized by the imposition of data retention obligations on third-party intermediaries such as internet service providers and telecommunications companies.”
The government argues its newly implemented surveillance powers are “far from weakening protections” and that it would never do anything to undermine journalists and whistleblowers’ safety.
“Far from weakening protections for sources as this report suggests, this government has strengthened safeguards through the Investigatory Powers Act,” a government spokesperson said.
“Now any public body seeking to use communications data to identify a journalist’s source must first gain approval from a senior judge.
“We believe in the freedom of the press, and would never do anything to undermine legitimate whistleblowing or investigative journalism – it’s not government policy and never will be.”