Investigative political journalism plays a fundamental role as a method of checking and balancing governmental processes. As an outlet through which the exchange of information, and ideas can widen the scope of public awareness of practices otherwise shrouded in mystery, journalism acts as the guardian of democracy, employing critique as it’s tool. When journalists are restricted from sharing controversial or unpopular views on contentious issues, through governmental censorship or punishment, the fundamental pillars of democracy are severely threatened. As such, the European Court of Human Rights employs a narrow margin of appreciation to domestic courts when interpreting Article 10 of the convention (The Freedom of Expression), with regards to political journalism.

On Tuesday, the U.K. Court of Appeal handed down a judgment, that a key clause in the Terrorism Act 2000 is incompatible with Article 10 of the European convention on human rights. The ruling came in the case of David Miranda, spouse of then-Guardian journalist Glenn Greenwald, who was detained at Heathrow Airport in 2013 for carrying encrypted files from whistleblower and former NSA contractor, Edward Snowden. Counsel for Miranda told the court; “Snowden, whatever you may think of him, provided information which has been of immense public importance. In this case we are talking about journalism of unusually high quality”.

Miranda was detained for 9 hours, and held for questioning under powers conferred by paragraph 2(1) of schedule 7 of the Terrorism Act 2000. Allowing travellers to be questioned on the grounds that they may be suspected terrorists, the Act allows detainees no right to remain silent, or receive legal advice. The extensiveness of the powers was held to be flawed on the basis of its incompatibility with article 10.

Although the police decision to detain Miranda was deemed lawful under the circumstances, the Court rejected the broad definition of terrorism advanced by the U.K. government. The correct legal definition, as held by the Court, would require that the material be published with the intent or recklessness to endanger a person’s life, as defined in section 1(1) of the Terrorism Act 2000. However, publications can still amount to an act of terrorism, should the material be published with the necessary mental element pursuant to the section. In Miranda’s case, the police were entitled to suspect that the material he possessed might be published within circumstances relating to section 1(1). The Court conceded however, that the threshold satisfied in Miranda’s case was to “quite a low level, highlighting the far-reaching scope of the still apparently permissible stop-powers conferred to police.

Despite what is still considered to be a “landmark judgment” by the independent human rights group Liberty, and a “major victory for the free press” by Miranda’s legal representatives, legislative change may not be needed after all. Following the trial a spokesperson for the government’s Home Office commented saying that: “In 2015 we changed the code of practice for examining officers to instruct them not to examine journalistic material at all. This goes above and beyond the court’s recommendations in this case.”

Regardless of any legislative change to follow, the high-profile case and the judges’ emphasis on the importance of the dissemination of information to the public through journalism, set an important precedent reaffirming the reverence, importance, and fundamentality of freedom of expression in a democratic, and well-informed society. As explained in his ruling, Lord Dyson, the most senior civil judge in England and Wales emphasized that “If journalists and their sources can have no expectation of confidentiality, they may decide against providing information on sensitive matters of public interest”. This simple logic sheds light on the reality that journalists, like most people, are likely to avoid reporting on controversial political issues, should it endanger them personally. Striking the fine balance between state interests of public security, and civilian interests of freedom of expression and governmental accountability, is evidently a legislative matter for parliament, and the Courts to continue to evolve as society changes, as threats to society change, and as methods of journalism modernise.

This story was originally published in Legal Loop. Republished with permission from author.

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