RIPA reforms will not go far enough
26 February 2015
The NUJ believes the current proposals on RIPA reform are not enough to ensure press freedom. The debate on the serious crime bill on Monday in parliament committed the government to interim guidelines and new clauses for legislation on RIPA.
The campaign against RIPA was always about its misuse by the authorities to spy on journalists. In response we demanded urgent action to prevent RIPA being used to secretly obtain the phone records of journalists. We have been campaigning to change the law so that the authorities should be required to make a public request to a journalist or news organisation to access communications data that could identify their sources.
Andy Smith, NUJ president, said:
"The bottom line is that no journalist can attempt to protect their source if the authorities can identify them using phone records without any notification or the ability to challenge the authority’s actions."
In the debate in parliament, Karen Bradley, Home Office minister, said:
"It has never been the practice in this country for those whose communications data are sought to be notified, and we do not intend to depart from that."
If the journalistic principle to protect sources is measured against the government’s announcements and the debate on RIPA in parliament, the changes proposed will not enable journalists to protect their material or sources against state surveillance.
In a letter published on Friday, Karen Bradley said the government does not have time to bring in new primary legislation until the next parliament, but confirmed the government would introduce interim guidelines that will require the police to gain judicial approval before they can obtain information about journalists’ sources.
Under the Police and Criminal Evidence Act (PACE) journalists are notified that the authorities want to access their material and sources, and have the ability to defend their sources in an open court with the chance to challenge and appeal the application and related decisions.
In the case of Tom Newton Dunn, the police used RIPA to access his phone records in secret, they did not notify him that they had accessed his material or sources. The Met obtained the phone records without notification or consent and in other RIPA cases, when the police have been spying on journalists, no journalist was informed in advance.
In the NUJ code of conduct it states: "A journalist protects the identity of sources who supply information in confidence and material gathered in the course of her/his work."
Roy Mincoff, NUJ legal officer, said:
"Under the Police and Criminal Evidence Act journalists must be notified by the authorities of an application to access their material and sources and have the ability to object, a right of hearing before a judge and the possibility of an appeal. The protections for journalists’ data under RIPA must be no less than that provided by PACE.
"To continue to allow the authorities to access journalists’ data and therefore sources will have a serious chilling effect on those who would otherwise reveal corruption, crime, abuse and wrongdoing by public and private bodies. Journalists are the public watchdog, with a duty to inform the public. The public has a right to be informed."
Dominic Ponsford, editor of Press Gazette, said:
"It looks like the government’s promised RIPA reforms will not go far enough to safeguard sources.
"Ministers have said that the new RIPA code of practice will direct police officers to use the procedure under the Police and Criminal Evidence Act when it comes to requests for journalists’ telecoms records.
"But the fear is that such requests will still go direct to the telecoms provider and the journalist will have no prior notification. With no one to argue the case for source confidentiality, judges will only hear one side of the argument and could end up rubberstamping requests which expose sources.
"The government needs to listen to the legitimate concerns of journalists and ensure that the new RIPA code does what they have said it will do and provides the same safeguards as PACE. This is a tried and tested piece of legislation which covers requests for journalistic material. There is no difference between police asking for a journalists’ physical contacts book, and their telephone records. The effect is exactly the same and the same legal safeguards should cover both."
The existing proposals will prevent NUJ members investigating and reporting on local, regional, national and international issues in the public interest so the NUJ will continue to campaign and is calling for specific changes to include:
- An independent and judicial process
- Automatic and mandatory prior notification of requests
- Mechanisms to challenge an application with the right of appeal
- New primary legislation to replace the existing powers and offer a "shield law" for journalists.