Free press and free journalism are important cornerstones of freedom of expression. Journalists and the media are, ultimately, informants of public knowledge. Journalists should be able to report without fear or favour. With this, we can understand the world in a manner which is accurate and free from bias. Resultingly, such understanding informs our views and choices. With the current international political landscape peppered with disinformation and inflammatory rhetoric, a free journalistic environment is more important than ever for democracy and the rule of law.
In the UK, we often take the freedom of our press for granted. Ranked 23rd out of 180 countries on RSF’s World Press Freedom Index, the UK has the potential to be a bastion for free and fair journalism in Europe. The law is an important tool that secures press freedom but, ultimately, it can be the tool that works to restrict it. So, what is preventing the UK from having the world’s most free press?
The Press and National Security
Freedom of the press concerns require very tacit balancing exercises between the public value in journalistic freedom and the equally valuable collective interest in national security. However, when the national security qualification to freedom of the press is taken advantage of, the voice of journalists can be unduly silenced. In 2022, the BBC were involved in closed proceedings regarding the publication of a story concerning an Mi5 Covert Human Intelligence Source who abused his former partner and was an active extremist. Agent ‘X’ was the subject of proceedings by the government against the BBC that argued that the story should not be published. The BBC was allowed to publish the allegations but was prevented from naming the agent due to the immediate risk against him. Crucially, the BBC argued that their story and the identification of ‘X’ would be in the public interest. Indeed, naming the individual would highlight his abusive and coercive-controlling behaviour to any women who may come across him in future and how he weaponised his status with the Security Service in that abuse. There is also significant interest in holding the Security Service to account too, particularly, how they are choosing to pursue disciplinary action against ‘X’. It was revealed by the BBC this February that Mi5 admitted to using false evidence in these proceedings.
Within this example are two fundamental questions underpinning freedom of expression. What are its limits and who is it designed to protect? The melting pot of interests in freedom of expression cases is an elucidating demonstration of how rights and values compete in law to inform our collective knowledge.
Self-evidently, there are negative implications to the revelation of X’s identity, including risk to himself and the operation in which he played a part. But the BBC proceedings occurred in secret and their arguments were brought forward by special counsel, which the news organisation themselves describe as ‘highly unusual’. Moreover, the closed nature of the hearing prevents the disclosure of the judicial reasoning behind the decision not to name ‘X’. As the case concerns balancing of public safety considerations, it is notably not in the interest of the public to not disclose, at the minimum level, the reasoning behind a prioritisation of the safety of the agent and the integrity of the security services. The journalistic endeavour to enlighten the public on how their rights are balanced and evaluated is, in this instance, unduly fettered.
The Press and SLAPPs
RSF also cites in their Index scoring the use of so-called SLAPP’s (Strategic Lawsuits Against Public Participation) against journalists in the UK as a factor negatively influencing the journalistic environment. This is where civil litigation is used against journalists in ab harassing and intimidatory manner to prevent the disclosure of information about an individual or an organisation. Often, these lawsuits are extremely expensive, requiring the input significant amounts of time, money and resources which aren’t always available to the respondent. This is not to mention the significant personal cost and reputational damage. The case of Carol Cadwalladr is demonstrative of the debilitating nature of SLAPP’s against individual journalists.
In a series of tweets and a TED talk, Cadwalladr made claims that Aaron Banks, a businessman and founder of the Leave.EU campaign, had covert links to Russia which he had not disclosed. Banks sued Cadwalladr for libel in 2019 which marked the beginning of a case spanning 3 years heard in both the High Court and the Court of Appeal. Highlighted by the UK Anti-SLAPP Coalition, Banks’ decision not to sue either the TED organisation or The Observer which published her original claims divorced her from institutional support and funding which may have assisted her. In addition, the litigation created an avenue for significant online harassment and abuse against Cadwalladr. The UK Anti-SLAPP coalition reaffirms that they would identify Cadwalladr’s case as an example of a SLAPP due to its use to silence a matter of the public interest and the ‘financial and psychological’ toll of the case on Cadwalladr herself. This is despite the court of first instance rejecting the idea that Banks was pursuing strategic litigation. The Coalition do not believe that a SLAPP should be defined by an improper purpose on behalf of the claimant but should look to other variables such as the engagement of public interest arguments and the individual cost; both financial and personal.
Statutory controls against the use of SLAPPS have been advanced in the last year with the introduction of The Strategic Litigation Against Public Participation Bill in 2023 which was supported by the Conservative Government. Unfortunately, the general election has meant that the bill remains in committee stage and has not progressed to the report stage. The bill would ensure that litigation identified by the courts as SLAPP’s will be struck out before trial. Additionally, a SLAPP is given a statutory definition. Its identification hinges on claims which engage expressions which have or would contain information of public interest, the claimant’s behaviour which has or intended to have an effect of the defendant’s exercise of their expression or limits their freedom of speech and that the behaviour of the claimant intending to cause harm beyond the remit of ‘properly conducted litigation’. It should be a priority for the new Labour government to carry-over the bill in their first year of government to enable further protections against journalists who are individually targeted for their reporting.
The Press and the Police
More than anywhere in the UK, freedom of the press is under acute threat in Northern Ireland. In December 2024 journalists Barry McCaffrey and Trevor Birney were awarded damages from the PSNI and the Metropolitan Police after it was found that surveillance of the journalists conducted by the police forces was unlawful. Speaking after the decision by the Investigatory Powers Tribunal, Birney suggested that there was the presence of an “endemic culture not only in Northern Ireland but in Britain” of the police and security services unlawfully placing journalist’s under surveillance to identify their sources. The surveillance operations against McCaffrey and Birney paint a frightening picture of threats to journalistic freedom. It is essential that surveillance operations against journalists are given explicit justification and should not be pursued unless under evident exploitation of the criminal law. It is the duty of Police Ombudsman of Northern Ireland and the Independent Office for Police Conduct to continually monitor this practice and to pursue action to prevent it where necessary.
Despite our commitment to freedom of expression in the UK, both under common law and statute, there are still significant threats to freedom of the press – one of the most tangible manifestations of our right to free speech. It is in our collective interest to fight for a free press, not least due to its contribution to our own personal knowledge but also its contribution to a thriving democracy. The law has, regrettably, shown to be a hinderance to current journalistic practices. It is now evident that reform is needed to prevent oppressive strategic litigation and to reform the publication of judicial reasoning in closed proceeding which concern public interest arguments. It is also the duty of our law enforcement officers to safeguard the public interest, and this extends to the protection of journalists. The case of McCaffrey and Birney demonstrates that police watchdogs must now take a proactive approach to preventing the surveillance of journalist who are otherwise acting lawfully. Only when these concerns are addressed can we say that the UK’s journalistic landscape is wholly free, and the public interest is respected.
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