Page 131 - Law and the Media

Law and the Media
In theory, criminal sanctions apply to any leak of any official information by a government
servant. However, in 1985 the acquittal of Clive Ponting showed that the government cannot
trust a jury to convict under what is now Section 2 of the Official Secrets Act 1989 unless
genuine national secrets are at risk. Ponting passed documents relating to the sinking of the
Argentinian warship the Belgrano during the Falklands War to a MP because he believed the
Government was positively and deliberately misleading the House of Commons.

Civil actions for breach of confidence are more likely to be effective in keeping official
information from the media. Injunctions will be granted where the employee had access to
secret information.

Successive governments are especially keen to preserve a blanket of silence about security
and intelligence services. Injunctions have been obtained against former Government
Communications Headquarters employees Dennis Mitchell and Jock Kane, who wanted to
make allegations of inefficiency and wasted money at Government Communications
Headquarters in Hong Kong, as well as former MI5 employees Joan Miller in respect of her
book One Girl’s War, which detailed her work as an MI5 agent, and Peter Wright in respect
of his book Spycatcher. The fact that Spycatcher led to legal proceedings in England,
Australia, New Zealand and Hong Kong showed the lengths to which the government is
prepared is go to keep the work of its employees secret. More recently, David Shayler was
charged with breaching the Official Secrets Act 1989 after disclosing information about
MI5’s activities to the Daily Mail. The Government tried, unsuccessfully, to extradite him
from France. He returned to England voluntarily in August 2000, confident that the Official
Secrets Act 1989 falls foul of the Human Rights Act 1998. However, the Court of Appeal
held that there was no such incompatibility (R v Shayler (2001)). Shayler has sought leave
to appeal the ruling to the House of Lords.

Civil servants and members of the armed forces and secret services do not have written
contracts of employment, but do owe a duty of confidence.

Public Interest Disclosure Act 1998
The Public Interest Disclosure Act 1998 redefines to some extent the duty of confidence of
an employee. Unofficially known as the ‘whistle-blowing Act’, the legislation seeks to
protect workers from recriminations from employers if they report actual or suspected
wrongdoing in good faith and in the public interest. This Act applies to most individual
employees, but not to self-employed professionals, the police or the armed forces. It does not
protect the public-spirited citizen who discloses corporate wrongdoing to the media in
circumstances where he has no connection with the offender.

For disclosure to be protected by the legislation, the employee must have a ‘reasonable
belief’ that a crime, miscarriage of justice or breach of a legal obligation has taken or is likely
to take place and that information relating to such matters is likely to be deliberately
concealed. An employee who makes disclosure to a third party unconnected with the
employer needs to show that he would be subjected to a detriment if he made such disclosure
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