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Official Secrets Act Tion About the Sinking of the General OSA Also Introduced a New Offence of Belgrano, an Argentinean Warship, Dur- Secondary Disclosure

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Official Secrets Act Tion About the Sinking of the General OSA Also Introduced a New Offence of Belgrano, an Argentinean Warship, Dur- Secondary Disclosure FREE Press No 157 March-April 2007 £1 Journal of the Campaign for Press and Broadcasting Freedom State interest v public interest Ponting, who worked in the Ministry Section 2 of the 1911 OSA, complete The contradictions of of Defence, was charged under Section 2 with its splinter of hope for a public of the 1911 OSA for disclosing informa- interest defence, was removed. The 1989 the Official Secrets Act tion about the sinking of the General OSA also introduced a new offence of Belgrano, an Argentinean warship, dur- secondary disclosure. are in the media ing the Falklands War. This criminalised further dissemina- His revelations debunked a tion of material gained from unautho- spotlight again, says Government cover-up of the facts behind rised disclosures and placed the media, the incident, but prosecuting Ponting for the first time, squarely in the line of Julie-ann Davies was a high-risk strategy for Thatcher. fire. Ponting pled “not guilty” arguing that, A whistleblower could no longer wo men, David Keogh and Leo although he had committed a criminal claim they made their disclosures in the O’Connor are, at the time of writ- act, he had done so in the public interest. public interest. Moreover, the media ing, being tried under the Official He cited Section 2 of the 1911 Act which could be prosecuted for publishing, or Secrets Act (OSA) at the Old held a slim provision for such a defence. otherwise disseminating, such revela- TBailey in London. Both deny the The judge, Mr Justice McCowan, dis- tions. charges. agreed. He said: “The public interest is It was argued the lack of a public Keogh, a civil servant in the cabinet what the government of the day says it interest defence in the OSA made it office, is said to have passed a memo is.” He added that the only legal way to incompatible with the Human Rights containing details of a talk between Tony communicate information was via autho- Act. MI5 whistleblower David Shayler Blair and George Bush to O’Connor, a rised channels. relied on this discrepancy when he was political researcher. He denied Ponting a public interest prosecuted under the OSA. It is alleged that O’Connor, motivated defence and indicated that the jury His case led to a 2001 House of Lords by his opposition to the Iraq War, slipped should convict. However, despite the ruling that a “defence of necessity” the four-page memo into papers belong- direction of the judge, Ponting was should be available under the OSA. But ing to his boss, the Labour MP for acquitted of breaching the OSA. His vic- Shayler’s hopes were shattered when the Northampton South, Anthony Clarke. tory meant remedial action was necessar- Lords added this defence was not avail- The court heard that Keogh and ily to prevent more whistleblowers argu- able in his case. O’Connor hoped the document, dated 16 ing the public had a “right to know”. Continued on page 8 April 2004, would enter the public domain. But, when Clarke, who voted against the Iraq War, found the memo he contacted the police. Prosecutor David Perry QC, told the jury that the OSA exists not to prevent Governmental embarrassment but to pro- tect the interests of the state. He said: “We are not talking about what may be embarrassing, a betrayal or an act of dis- loyalty. Even in the age of mass commu- nication, something remains sacred.” But who decides when, or if, the pub- lic interest outweighs the state interest? The most recent major overhaul of the OSA came in 1989 after several high-pro- file leaks and trials rocked the Thatcher Government. One of these cases, the 1985 trial of Clive Ponting, hinged upon the issue of the public interest. The Old Bailey: setting for Official Secrets Act trial of David Keogh and Leo O’Connor FREE Press March-April 2007 1 2 Regulation Key players: left to right, News corporation boss Rupert Murdoch, trade secretary Alistair Darling and Virgin boss Richard Branson A waiting game published guidance, which clearly sets out public concern over Murdoch’s UK media The wrangle over the circumstances in which intervention will dominance. A concern expressed in the be considered.”The big guns were being letters pages of national newspapers and BSkyB’s purchase of rolled out! Now the period of consultation political magazines last November and in has ended, Darling must decide whether a Parliament, where 67 MPs signed an Early ITV shares could be Competition Commission inquiry is needed Day Motion on the subject earlier this year. on either public interest or competition Now is the time to put pressure on MPs and the beginning of the grounds. the Trade and Industry Secretary to make Sky is also under pressure from the sure the full extent of Murdoch’s media end for Murdoch, regulator in other areas. In March, Ofcom interests comes under serious public announced it was launching an scrutiny and leads to the break-up of his writes Barry White investigation into the payTV market, media empire. following complaints from a number of Writing in the Observer on 17 December, riday 27 April could be the date that media companies.Virgin Media, BT, Setanta Henry Porter in his “radical manifesto to signals the first major setback in the and Top Up TV all asked the regulator to revitalise Britain”said:“No foreign company Murdochs’relentless invasion of the investigate and consider making a “market or individual should be allowed to own a British media scene. On that day reference”under the Enterprise Act 2002. controlling interest in more than two both Ofcom and the Office of Fair Following this assessment Ofcom will national newspapers. Ownership of both a FTrading (OFT) will report to the Secretary of decide whether to make a reference to the national newspaper and a broadcasting State for Trade and Industry, Alastair Darling. Competition Commission. organisation would not be possible for such Ofcom will analyse the wider public interest The investigation came after a bitter row a person or company.Those foreigners issues of BSkyB’s November 17.9 per cent between Virgin Media (formerly NTL) and wishing to benefit from the British media acquisition of ITV shares, and the OFT is to BSkyB when, following a dispute over will only do so by paying full rates of examine the competition grounds that may carriage pricing, the satellite broadcaster income tax and establishing at least a part- arise.The secretary of state is due to pulled a range of basic channels from over time residency in the UK, thus respond by 26 May. 3.3m Virgin subscribers. It now seems likely demonstrating a stake in the affairs and Following BSkyB’s purchase of £940m that this dispute will end up in a costly future of the country.The use of a worth of ITV shares by Rupert Murdoch’s court battle in the high court as Virgin newspaper or broadcasting organizations son James, Lord Puttnam called on Media has filed legal proceedings to to threaten Government or any political politicians to question “any further challenge what it calls the “anti-competitive party with a view to gaining commercial extension of Murdoch’s tentacles. It is my behaviour”of its rival. advantage would be illegal and in some personal belief that BSkyB and therefore In the coming period Darling is likely to cases subject to criminal penalty.” Rupert Murdoch, has unquestionably be under intense pressure from Murdoch, Sound thinking for Messrs Darling and acquired ‘material influence’at ITV and this who is not known for coyness when dealing Brown to ponder. can only lead to a further and with Labour ministers.The Blair/Murdoch unprecedented erosion of plurality within connection has had a malign influence on ● The Campaign for Press and Broadcasting the British media”he said. Government policy for the past decade.The Freedom and the NUJ made a joint When Alistair Darling made his spotlight could also fall on Blair’s likely submission to Ofcom in March on the public “intervention”announcement in Parliament successor, Gordon Brown, who would not interest issues relating to BSkyB and ITV. You on 26 February, he was immediately relish a dispute with the powerful media can view a copy on the CPBF web site at: denounced by Sky, who insisted that the tycoon within weeks of taking office. www.cpbf.org.uk decision,“contradicts the Government’s Running counter to all this is intense 2 March-April 2007 FREE Press Regulation 3 ● Ofcom’s Digital Dividend consultation paper can be found at: www.ofcom.org.uk/consult/condocs/ddr ● Comments from Public Voice at: Commodity or www.public-voice.org.uk ● Information about the spectrum and European policy ec.europa.eu/information_society/ policy/radio_spectrum/index_en.htm ● The CPBF’s response to Ofcom: public asset? www.cpbf.org.uk This approach is uncompromisingly campaigners met Ofcom and How the radio spelt out in Ofcom’s “Digital Dividend Government representatives – and there Review”. was a stark clash of cultures. It became spectrum is allocated Historically the radio spectrum has clear that services with immense social been controlled by various regulatory value, such as local television, disability is not just a subject bodies that have had the power to grant access services and citizen centred access to it – and, in return, to lay down broadcasting could never compete with for techie nerds, says conditions. For example, commercial the media moguls who are likely to buy ITV has been required to carry “non- up spectrum space. Patricia Holland commercial” programming, including “Do you see the radio spectrum as a current affairs and children’s pro- commodity or a public asset?” A ques- ow to allocate the radio spec- grammes.
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