My Lords, I declare an interest as a producer and director at the BBC.
The protection of sources of journalistic material has been talked about in the other place and in your Lordships’ House. Maintaining the trust of these sources is crucial to enabling the important role that is played by the free press in exposing wrongdoing in private and public institutions. That must be in the public interest. There is a difference between the public interest and what the public is interested in.
This Bill curbs the collection of journalistic material in violent and difficult situations, such as riots or demonstrations that turn violent. I very much welcome Clause 2, which covers privacy. That concerns all citizens. This amendment asks for an extra protection for sources of journalistic material and information across the powers of the Bill. It responds to noble Lords’ concerns about the difficulty of defining a journalist. In Clause 73, the words “journalistic material” are used. The amendment uses the same concept and refers to:
“Protection for journalistic sources, materials and activities”,
using the definition of journalistic material set out in PACE. This definition can be used as a basis for decision-making by the carefully trained and very experienced judicial commissioner who is charge of this process. The commissioner will decide what is journalistic material and what is not. I am sure that the public interest—again, rather than what the public are interested in—will be the most important criterion. This would mean that PR communications, which are for commercial benefit rather than public interest, will be excluded. Likewise, it would exclude fundamentalist bloggers who are clearly sending out propaganda whose material could never pass the test of public interest.
I know the Minister is concerned that free speech should flourish and that sources who provide this journalistic material do not feel that they are unnecessarily being surveilled by the authorities using the extraordinary powers available in our digital age. I am grateful to the Government for listening to these concerns, and I welcome the safeguards provided in Clause 73 for the protection of sources of journalistic information in the power of communications data.
Amendment 25, however, aims to extend those protections for sources to the other powers set out in the Bill. I am particularly keen for the power for targeted equipment interference to be covered by a safeguard for sources. This could be material owned by the journalist or the source who is giving the
information. Targeted equipment interference includes the ability to use a mobile phone’s microphone as a bug. It could also include looking at a journalist’s electronic notebook and at footage shot in the course of a story, which, as a broadcast journalist, worries me a lot.
I note that there are thresholds in the Bill for issuing this kind of warrant, which include national security and serious crime. The definition of serious crime is explained in Clause 235. Paragraph (a) states that it has to be an offence for which someone,
“could reasonably be expected to be sentenced to imprisonment for a term of 3 years or more”,
but paragraph (b) states that it is where,
“the conduct involves the use of violence, results in substantial financial gain or is conduct by a large number of persons in pursuit of a common purpose”,
I am worried that the definition in paragraph (b) is very wide and represents too low a threshold. It includes any conduct that,
“involves the use of violence”,
and,
“conduct by a large number of persons”,
and therefore includes the classic case in which the police try to get hold of footage filmed at public demonstrations. Violence is a very wide concept. If serious crime was limited to paragraph (a) or to indictable offences only, there might be a point, but allowing the definition of serious crime to cover any violence by a large number of persons is too low a threshold and would get round the tried and tested means of accessing information through PACE.
I know from experience that journalists are often seen by demonstrators and rioters as extensions of the authorities. This process started abroad, but it is now often seen in this country. As a result, we are seeing journalists targeted for taking footage of riots or violent behaviour. This is a dangerous trend, which we should all try to prevent. In the Dale Farm case, when the police wanted to see footage from Sky News, the judge ruled that the request posed a danger to broadcast journalists. He said:
“If the perception takes hold that such people are working on behalf of the police, or are likely to co-operate with them by supplying such material routinely, life could become very difficult. They might find it more difficult to obtain access to areas where demonstrations are taking place or to work in the vicinity of those who are prone to violence. Moreover, at its most acute, the perception could increase the risk of violence towards cameramen or their equipment”.
I ask the Minister to look again at the Bill and to extend the protection for journalistic material across the powers. This provision would ensure that the judicial commissioner would be asked to look at warrants and would have to bear in mind the safeguards needed to protect journalistic sources.
Proposed new subsection (4) asks for notice of a warrant request to be given to the media organisation, unless there are exceptional circumstances, such as a great emergency or when immediate action has to be taken. This is important so that it can explain the dangers involved in exposing the source. I understand that, as the Bill stands, the judicial commissioner, if concerned about the dangers of a warrant being granted
to the journalist and the dangers this might pose to the journalistic source, will have the right to ask for more information. My fear is that they might not have been given all the facts by the people requesting information. It might just be that the person making the request is not even aware of the danger to the journalistic source from exposure to surveillance.
I quite understand the fears of the Government that notification to a media organisation might defeat the whole purpose of the exercise, but PACE covers the physical property of journalistic information and gives a right of notification so that the application can be challenged. PACE, however, dates back to 1984, when the internet was still a glimmer in the eyes of Sir Tim Berners-Lee. We never imagined the presence of digital information in worldwide communications at the press of a button. Mobile phones, computers and the internet are the notepads of the 21st century. The Bill is a wonderful recognition of the changing way in which we communicate, and it covers this. Surely this amendment is an opportunity to update the notification section of PACE to cover the equipment of our age that is used to gather journalistic information.
The amendment suggests that notification should be given through the media organisation. In the vast majority of cases, the application will relate to a newspaper or broadcaster, and a lawyer will be available for the news outlet in either broadcast or print. In-house lawyers regularly receive sensitive information, such as orders from family courts, privacy injunctions and super-injunctions, and are well able to handle sensitive information such as police requests for footage under PACE or the Terrorism Act, or indeed any police request. So I do not think handling such a request will be an issue. If there is a concern about the media organisation or the journalist involved, we should talk about the judicial commissioner being involved and helping make that decision.
I understand that noble Lords are concerned that there could be false claims of journalistic sources, which could be used to prevent a warrant. I suggest that the journalist would have to sign a witness statement that the claim is true; if found not to be, they would have perjured themselves and be subject to the might of the law. Once again, in this issue the judicial commissioner would have an important role to play. They would use their experience and training to decide whether the recipient is noteworthy or not.
The amendment represents very important safeguards for free speech in our country. I know that the Government greatly support this principle. I urge the Minister to consider carefully the changes to the Bill set out in the amendment and I beg to move.