Chapter 72: Security and anti-terrorism laws

In this chapter we look at a number of laws about national security, snooping and anti-terrorism. We examine the way such laws have developed in recent years and how they can affect the work of journalists.

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The current ‘war against terror’ has had several major effects on journalists, one being an increase in the number and severity of laws on national security issues.

Many democracies have implemented laws specifically to fight terrorism. Some of them are explicitly titled ‘anti-terrorism’, some are branded as ‘patriotic’ while others are more subtle amendments to existing criminal codes.

However they are described, almost all impact to some degree on the work of journalists.

Although domestic terrorism has existed for centuries, most of the current anti-terrorism laws have flourished in the years since the renewal of international terrorism in the late 1990s which reached a symbolic peak with the events of 11 September 2001 in America.

Before the latest spate of laws, many countries already had laws attempting to combat the overthrow of governments, attacks on citizens by political, religious or ethnic militants or invasion by other nations.

We will first look at some of the more ‘traditional’ security-related laws then some modern anti-terrorism laws.

Sedition laws

Sedition laws are discussed as criminal libels in Chapter 71. In some countries they are still actively used by governments to suppress dissent, though in many free-speech democracies they have a poor history and are seldom used.

Typically, the more benign - and seldom used - sedition laws make a distinction between talk about changing government (the free speech aspect) and practical actions which might lead to the overthrow of a government (the criminal element). In such societies, sedition laws say citizens can be vehement about political change but they must not do anything to achieve it by illegal means, such as a coup or rebellion.

For information on the sedition laws in a number of countries, see the Appendix at the end of this chapter.

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Official secrecy laws

Many countries have official secrets legislation to stop their citizens from passing to foreign governments secret information which could damage the country.

This could be information about their armed forces and armaments - especially nuclear - or weapons research, such as biological warfare. It could also include intelligence gathering at home or spying overseas. It could even cover matters such as emergency plans in the case of a war, where the government will seek safety or how it will feed the nation.

The problem with most official secrecy laws - and with many modern anti-terrorism laws - is that citizens are not told what the secret is that is being protected. This may seem like an obvious requirement, but it can cause problems for journalists in two main areas: you may inadvertently report something covered by office secrecy legislation and you cannot serve your duty as the Fourth Estate by exposing wrong-doing if it is protected by secrecy laws.

One way some societies tried to find a balance between the citizen’s right to know and government’s need to protect national security was through systems such as D-notices.

The D-notice system in countries such as Britain and Australia is basically an agreement between the Department of Defence and the media that they will not broadcast or publish material which could threaten national security. It is an advisory system and not binding on the media, though most do comply with it.

Once upon a time D-notices were issued quite frequently whenever governments suspected a journalist was getting close to revealing an important secret. In recent years it has changed to give more general guidance on the types of issues which should not be published. In Australia today it has fallen into disuse.

Some countries have also enacted specific laws to protect single aspects of national security. It is your duty as a journalist to find out what laws apply in your country.

For example, in Australia the ASIO Act prevents citizens – including journalists – from revealing the identity of any employee of the Australian Security Intelligence Agency without written permission from the agency’s Director General. ASIO is the intelligence organisation set up to protect Australia from foreign threats, including spies and terrorists. There is a similar law to protect the identities or agents or staff working for the Australian Secret Intelligence Service (ASIS).

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Electronic interception

Many countries have specific laws prohibiting ordinary citizens - including journalists - from intercepting private messages and using them. These laws are often called electronic interception laws but are more commonly known as eavesdropping, wire-tapping or bugging laws.

These laws usually make it an offence to secretly listen in on another person’s conversation, whether over a conventional wired network such as landline phones or over wireless networks, such as mobile phones or cell phones. Some laws also cover communications by mail, fax or email, either within the main Act or in separate legislation. In some countries, such as the United States and Canada, it is also illegal to make, sell or trade in electronic secret surveillance devices or software without legal approval.

The same laws usually also make it unlawful to communicate to a third party any information obtained through secret interception. This includes publication or broadcasting such information by journalists.

There are usually exceptions to these laws, for example for security agencies or under a court order, but in most democracies a judge or magistrate will require a valid reason before giving permission. In recent years, governments in some hitherto open democracies have sought - and in some cases taken - powers to allow their police or intelligence services to tap people’s calls or bug their conversations without asking a court.

As mentioned earlier, as with many security-related laws, citizens may not be aware of the powers government agencies have or how they use them. And there is an added danger for journalists in that your own conversations might be tapped or bugged by police or intelligence services, especially if you are investigating some corrupt or dishonest behaviour.

In one of the most famous stories of investigative journalism - the Washington Post’s Watergate reports - journalists Bob Woodward and Carl Bernstein often had to use public telephones or meet contacts in underground car parks to minimise the danger of their office or home phones being tapped or their conversations being bugged by the authorities.

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Anti-terrorism laws

In the wake of the 11 September 2001 attacks in the United States, and following bombings in Europe and South-East Asia, many governments around the world introduced strict anti-terrorism laws.

Although many lawyers and civil liberties organisations argued that existing criminal laws were sufficient to deal with the new wave of terrorism, many governments felt their security services needed new and increased powers so they could take action in secret, without the kind of public scrutiny which might alert the terrorists.

In the general atmosphere of fear - created partly by terrorist attacks and partly by the new laws themselves - many of the basic principles of human rights, constitutional and statutory safeguards and common law were suspended. For example, laws restricting electronic interception were overridden so police and intelligence agencies could eavesdrop on private conversations and tap into personal communications without needing a warrant.

In many countries, the common law protection offered by habeas corpus for hundreds of years were reduced or suspended so that security forces could detain suspects in secret for interrogation for longer and longer periods. In some countries laws were introduced or changed to prevent an arrested person’s family from knowing what had happened to them.

Provisions protecting freedom of speech - either constitutional or implied - were either reduced or suspended altogether so that in countries such as Australia it became an offence for a journalist even to report that certain people had been arrested under the new anti-terrorism laws.

Some common features of anti-terrorism laws or amendments to criminal codes which might affect journalists in different countries include:

  • Restrictions on what journalists can write or broadcast on actual or potential acts of terrorism;
  • Restrictions on information available to journalists about terrorism, investigations or prosecutions;
  • Restrictions on how journalists themselves can obtain information about or from terrorists or suspected terrorists;
  • Restrictions on traditional protections for journalists’ sources and, in some cases, making it an offence to withhold any information from police or security forces;
  • Restrictions on freedom of movement for journalists doing their work by giving police new powers to detain people or prevent access.

As time passed - and security forces in many democracies claimed success in preventing terrorist attacks - some judges began to implement a more measured approach to interpreting the new laws where they could. In some countries this was seen as the judiciary performing its traditional role of balancing the excesses of executive governments.

The effects of new anti-terrorism laws on journalists have varied from country to country, as have the reactions of the media within each nation. In some countries the media have been all but silenced in their reporting of terrorism and anti-terrorist actions. In other countries some media organisations have enthusiastically supported stricter government controls over them while others have spoken out against them.

As with most laws that can affect the media, as a journalist you should know when you are out of your depth and seek advice from more senior colleagues or lawyers employed or retained by your organisation. Considering that in many countries the penalties for breaking security laws can be very severe, it is important that you understand the dangers and make thoughtful decisions.

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TO SUMMARISE:

National security and anti-terrorism laws affect all citizens but there is often secrecy about how they are applied. This can make the work of journalists difficult and dangerous.

In many free speech democracies, sedition laws are falling into disuse, but in many they are being replaced by specific laws on national security and terrorism. It is your task as a journalist to know what laws apply in your country.

In many countries it is illegal to tap into, eavesdrop on or bug private conversations and also to use any information obtained.

Many new security and anti-terrorism laws override some traditional freedoms - such as habeas corpus - which journalists have taken for granted. You may need to rethink your attitude to many other laws in these new circumstances.

APPENDIX

The following table of information on sedition laws in a number of countries has been reproduced from a research paper In Good Faith : Sedition Law in Australia by the Library of the Parliament of Australia. Some of the information may be out-of-date, so should be checked before use. For more on sedition, anti-terrorism and other security laws in Australia, go to this extra chapter in The News Manual.

Country
Sedition law
Bangladesh
Penal Code, s. 124A
Belize
Criminal Code chapter 101 ss 213-217
Brunei Sedition Act, chapter 24
Canada
Criminal Code s. 59
Fiji
Penal Code, Cap. 17, s. 65-66
India Penal Code s. 124A
Ireland Offences against the State Act 1939, ss. 11, 12, 26 ; Public Safety Act 1927, s.11
Kiribati
Penal Code, ch 67, Part IX
Malaysia
Sedition Act 1948
Maldives Penal Code
New Zealand Crimes Act 1961, ss 81-85. Repealed, on 1 January 2008, by section 5 of the Crimes (Repeal of Seditious Offences) Amendment Act 2007 (2007 No 96). First prosecution in 30 years in 2006 (against Tim Selwyn).
Nigeria Criminal Code Act s. 51
Pakistan
Penal Code s. 124A
Papua New Guinea
Criminal Code 1974, ss 44-46
Philippines
Revised Penal Code, articles 139-142
Sierra Leone Public Order Act 1965, ss 33-37
Singapore
Sedition Act 1964
Solomon Islands Sedition Act 1940
Sudan
Criminal Code, articles 66-69; Press Law, article 25
Taiwan
Criminal Code, article 100
Tonga
Criminal Offences Act ch. 18, ss 47-48
Trinidad and Tobago
Sedition Act
Tuvalu Penal Code, ch 8, Part IX
Uganda

Sections 41, 42 and 50 of the Penal Code Act
Sections 39, 40, 42, 43 and 179 of the Penal Code Act (Chapter 120 of the revised Laws of Uganda)

United Kingdom TNM notes: The oral or written publication of words with a seditious intention, and an agreement to further a seditious intention by doing any act, have always been common law offences. Attempts to codify sedition, treason and allied offences have not yet been implemented.
United States Smith Act of 1940 (18 U.S. Code § 2384-5)

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Index to Chapter 72
  1. Sedition laws
  2. Official secrecy
  3. Electronic interception
  4. Anti-terrorism laws
  5. To summarise
  6. Appendix
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