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Article written by Olga Kyriakoudi
In January 2023, the National Security Act (NSA) stirred concerns within the sphere of investigative journalism, as it appeared to set a relatively low threshold for defining espionage. Guy Black, the deputy chair of the Telegraph newspapers, expressed these concerns while addressing the House of Lords.
Black voiced his reservations regarding the draft legislation, fearing that its broad language had the potential to inadvertently ‘criminalise’ journalists and whistle-blowers. The Act states that an offence occurs if an action ‘may materially assist a foreign intelligence service.’
The Conservative peer highlighted a series of investigative reports that he believed could be at risk under the new law if it remained unaltered. Among these reports, the Panama Papers investigation, which the Guardian and other media outlets published, exposed how the global wealthy elite could exploit secretive offshore tax systems. Lord Black also raised concerns about other journalistic endeavours, including what he referred to as ‘basic reporting.’ This included the Telegraph’s coverage of Chinese influence in the UK, an article in the Mail that detailed the ‘disturbing experiences’ of female submariners, or a BBC report that focused on ‘a spy who abused his status to terrorise his partner.’
In essence, Guy Black’s remarks highlighted the fear that the National Security Act’s language could have a chilling effect on investigative journalism. This could potentially subject journalists and whistle-blowers to legal consequences for activities meant for public-interest reporting rather than espionage.
Nevertheless, the Act received Royal Assent in the UK on 11 July 2023. Most provisions will come into force on 30 October 2023. The National Security Act 2023 introduces a set of offences related to ‘foreign interference’, targeting actions by foreign powers that contradict open and transparent diplomacy. The primary foreign interference offence entails meeting three key conditions:
- Interference Effect: The action must result in an ‘interference effect.’
- Prohibited Conduct: The action must be deemed prohibited.
- Foreign Power Condition: The action must be carried out for or on behalf of a foreign power, and the person must know or reasonably ought to know this.
The Act defines the term ‘interference effect’ to include actions such as interfering with an individual’s exercise of their rights under the Human Rights Act 1998 (encompassing freedoms like expression, assembly, thought, and religion), affecting the execution of public functions, influencing the use of services tied to public functions, meddling in political processes and decisions, impacting participation in legal processes under UK laws, or jeopardising the safety and interests of the UK.
Conduct is considered prohibited under the Act if it constitutes an offence, involves coercion, or entails making a ‘misrepresentation’ aimed at addressing what is commonly referred to as ‘disinformation’. A ‘misrepresentation’ is defined as a representation that a reasonable person would perceive as false or misleading in a way that is pertinent to the interference effect, and the person making the representation knows or intends it to be false or misleading in a way pertinent to the interference effect. Misrepresentation can take the form of statements or any other form of conduct. The Act explicitly mentions that misrepresentation can include distorting a person’s purpose or identity, or presenting information in a way that amounts to misrepresentation, even if some or all of the information is true.
In addition to these offences, the NSA introduces a novel Foreign Influence Registration Scheme, which necessitates the registration of arrangements aimed at carrying out political influence activities in the UK under the direction of a foreign power. This measure seeks to enhance transparency and openness in political influence activities.
Taken together, this new legislation along with the National Security and Investment Act 2021 and the Higher Education (Freedom of Speech) Act 2023 underscores the intricate interplay of UK laws designed to uphold the fundamental tenets of democracy in the face of intricate geopolitical challenges. It highlights the significance of safeguarding both national security and democratic principles within an evolving global landscape.
In conclusion, the National Security Act of 2023 presents a significant shift in the legal landscape of the United Kingdom, with its comprehensive provisions addressing national security concerns. While its aim is to safeguard the nation’s interests and security, concerns within the realm of investigative journalism have been raised. Guy Black’s caution regarding the potential chilling effect on journalism emphasises the delicate balance between national security and the freedom of the press.
The Act’s broad language and its criteria for defining espionage have generated concerns that investigative journalists and whistle-blowers could unintentionally face legal consequences for activities intended for public interest reporting rather than espionage. This poses a potential challenge to the vital role of journalism in holding power accountable and ensuring transparency.
As the implementation and interpretation of the National Security Act continue to evolve, it becomes crucial for society to navigate the complexities it presents. Striking a balance between protecting national interests and preserving the fundamental principles of a free press is a challenge that requires ongoing scrutiny, debate, and potential amendments to the legislation. Ultimately, the Act serves as a reminder of the ongoing need to protect both national security and the fundamental values that underpin a democratic society.