Page 267 - Law and the Media

Law and the Media
I find it impossible to say that Section 1 can only be applied to cases of spying or
sabotage.

However, he suggested that Section 1 charges should be brought only in the clearest and most
serious cases.

Since the ABC case, there have been no further prosecutions against members of the media.
In recent years, the government has increasingly relied on the civil remedy of breach of
confidence to prevent the media communicating allegedly secret material, for example the
Crossman Diaries and Spycatcher litigation (see Chapter 6). However, that does not mean
that the media should discount the risk of prosecution under Section 1 of the 1911 OSA.
There is always a risk of prosecution if information is published which is considered to be
for a ‘purpose prejudicial to the interests of the state’.

15.3 The Official Secrets Act 1989: specific disclosure of
official information

15.3.1 Objectives of the 1989 Official Secrets Act

The 1989 OSA was introduced to replace Section 2 of the 1911 OSA, which, during its
80-odd years of life, had probably been the subject of more criticism than any other law on
the statute book. It was the generality of Section 2 that the Franks Committee and other
critics found most objectionable. Section 2 of the 1911 OSA penalized the disclosure of any
information obtained by a person holding office under the Crown or by a government
contractor in the course of his duties, no matter how trivial the information, and irrespective
of the harm likely to arise from its disclosure.

According to the 1988 White Paper, the central objective of the government’s new legislation
was to provide a better definition of when the disclosure of official information is an
offence:

The objective of the Government’s proposals is to narrow the scope of the present
law so that the limited range of circumstances in which the unauthorized disclosure
of official information needs to be criminal is clearly defined. This will ensure that
no one need be in doubt in what circumstance he would be liable to prosecution,
and enable the courts to enforce the law without any overdue burden of proof being
placed either on the defence or the prosecution.

The principal yardstick adopted to justify the imposition of criminal sanctions for wrongful
disclosure is the degree of harm to the public interest that may result. It will therefore not be
enough that disclosure is undesirable, a betrayal of trust, or an embarrassment to the
government. Where the harm arising from improper disclosure is not sufficient to warrant
recourse to the criminal law, the government said in the White Paper that it would be content
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