By Mark Esposito, Guest Blogger

This is the third of a multi-part article on the Public Interest Defense and its application to the the Edward Snowden situation. The defense is not recognized in America but other nations have considered this legal mechanism to provide an appropriate way to deflect criminal charges from whistleblowers like Snowden. Part 1 can be found here and  Part 2 can be found here.

We found in parts 1 & 2 that the absolute right to a public plebiscite on punishment for political crimes goes back centuries to at least the time of Publius Horatius. We also saw that rulers have used this right to manipulate outcomes to further their own interests in deflecting blame or attacking political opponents. In modern times, the jury has replaced the assembled citizenry but the motivation of rulers to limit or channel the ancient right to their own ends remains. Even in America where the defense doesn’t technically exist but where its cousin, whistleblower protections, do, the urge to rein in messengers of truth remains.

The Public Interest Defense Abroad

Imagine the most influential prosecutor in modern America uttering the following words about the public’s right to understand the secret inner workings of  its government:

“Freedom of expression constitutes one of the essential foundations of a democratic society …it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also as to those that offend, shock or disturb. Freedom of expression … is subject to a number of exceptions which, however, must be narrowly interpreted and the necessity for any restrictions convincingly established.

“These principles are of particular importance as far as the press is concerned. Whilst it must not overstep the bounds set, inter alia, in the “interests of national security” or for “maintaining the authority of the judiciary”, it is nevertheless incumbent on it to impart information and ideas on matters of public interest. Not only does the press have the task of imparting such information and ideas: the public has a right to receive them. Were it otherwise, the press would be unable to play its vital role of public watchdog.”

These are part of  the guidelines (here) set down for all prosecutors in the United Kingdom. They have been expressly emphasized against the backdrop of NSA contractor Edward Snowden’s disclosure of confidential documents to journalist Glenn Greenwald exposing the operational details of America’s super-secret electronic global spying program.  The disclosures have been particularly damaging to Britain since they disclose a pattern of joint cooperation between the English-speaking peoples (the Five Eyes partners –read about them here in this Canadian document) to bug key allies in the so-called War on Terror.

But unlike officials in the U.S. who brand anyone leaking sensitive information as a “traitor,” Britain’s chief prosecutor, Keir Starmer, has launched a spirited defense of journalists who snoop around government agencies in the public’s interest. “We’ve got to recognise that in the course of journalism, journalists will rub up against the criminal law and that is why, in our guidelines, we took the approach that we would assess where there was evidence of a criminal offence, whether the public interest in what the journalist was trying to achieve outweighed the overall criminality.”

For Starmer, the public’s right to know and the means of securing  that right, are at least equal to the Crown’s interest in deterring and punishing crimes. “There are lots of examples of journalists who, on the face of it, may have broken the criminal law but have obviously pursued a greater good in doing so,” said Starmer, who will step down as DPP at the end of the month.

“That is why we wanted to issue guidelines, and our approach is very clear: first we look to see if an offence has been committed; well, if not, that’s obviously the end of it. If an offence has been committed, we then say: did the public interest in what the journalist was trying to achieve outweigh the overall criminality, taking into account the nature of the lead, how much information there was, what they were trying to uncover etc?”

That precept is the essence of the Public Interest Defense which is included in law of the U.K. and Canada. In Britain, the defense is most commonly applied to libel actions where the public’s right to learn about corruption or about threats to public safety outweigh notions of protecting reputations of government actors.  The defense requires both a showing of manifest public interest as well as the responsible practices of the journalist in developing the story. As the U.K.’s Supreme Court held: “There must be a real public interest in communicating and receiving the information,” and “there must be some real public interest in  having this information in the public domain.”

The defense was specifically omitted from Britain’s Official Secrets Act 1989 governing inter alia, disclosures by members of the UK’s intelligence community, but that error may be in line for correction.  Starmer notes that technology has changed dramatically since Britain’s interlocking pattern of intelligence laws was written just before the new millennium. “I think there’s a growing recognition that the legislation in place needs to be looked at again to see whether it works well in the current environment … some of the old laws should be looked at again. I think most people accept that it is necessary to have some surveillance in a democratic society. I think most people accept that it’s important to have limits and clear safeguards on that.”

In Canada, those acting in the public interest are protected from criminal prosecution if they first bring concerns affecting the public to  “his or her deputy head or, if not reasonably practical in the circumstances, the Deputy Attorney General of Canada.” If these disclosures are met with no response and after a reasonable period of time, the whistleblower may appeal to one of two independent governmental bodies set up to review allegations of government wrongdoing. The need for prior disclosure to authorities is waived in the cases of  potential “grievous bodily harm or death.” You can read about Canada’s law here.

What is the Public Interest?

The concept of the public’s interest in national security matters  involves important but conflicting concepts about safety and freedom. Certainly the public interest involves the right to be secure in one’s home and business, and free from domestic and foreign terrorist attack.  It also involves the right of the public to know about the actions of its government in order to evaluate both the propriety and effectiveness of the response to these threats. Thus, the public’s interest in national security  is an amalgam of interests and not one overriding concern. How then to define the concept?

In the UK, the public’s interest is refined in the prosecutorial guidelines based on English common law. One of the paramount concerns is the public’s right to know and a normative approach is taken in the text:

The public interest served by freedom of expression and the right to receive and impart information has never been defined in law. However, examples of conduct which is capable of serving the public interest include the following:

(a) Conduct which is capable of disclosing that a criminal offence has been committed, is being committed, or is likely to be committed.
(b) Conduct which is capable of disclosing that a person has failed, is failing, or is likely to fail to comply with any legal obligation to which s/he is subject.
(c) Conduct which is capable of disclosing that a miscarriage of justice has occurred, is occurring or is likely to occur.
(d) Conduct which is capable of raising or contributing to an important matter of public debate. There is no exhaustive definition of an important matter of public debate, but examples include public debate about serious impropriety, significant unethical conduct and significant incompetence, which affects the public.
(e) Conduct which is capable of disclosing that anything falling within any one of the above is being, or is likely to be, concealed.

The list is not intended to be exhaustive, however the clear focus is protecting the watchdog function of the press in revealing classified information necessary for honest assessments of government actions in combination with the good faith motivation of  the journalist is making the disclosure.

Canada takes a practical approach matching the defense to prevention of a crime. Thus ”  a person acts in the public interest if

• (a) the person acts for the purpose of disclosing an offence under an Act of Parliament that he or she reasonably believes has been, is being or is about to be committed by another person in the purported performance of that person’s duties and functions for, or on behalf of, the Government of Canada; and
• (b) the public interest in the disclosure outweighs the public interest in non-disclosure.

Various factors are articulated to guide  the judge in determining the issue but chief among them is finding that disclosure outweighs non-disclosure. Thus in the easy case of troop movements during wartime, a non-disclosure of tactical operations would most always trump disclosure to prevent a criminal act (such as a violation of another nation’s airspace during the transport) in such a movement given the potential for loss of life as compared to the seriousness of the offense.

Unfortunately in the case of each nation’s law, there is a disconnect between the alleged criminal actor and the public rendering judgment since the judge must decide threshold questions which have nothing to do with the merits of the disclosure. In the UK, the court must first determine if the defendant may invoke the defense at all since only certain crimes are amenable to the protection of the Public Interest defense. Notably, members of the intelligence community are unable to invoke this defense  under the Official Secrets Act though the amendment to add the defense garnered substantial support in Parliament. In Canada, the two-step requirement of prior disclosure to authorities in most cases, serves as a significant limitation on the defense.  This would be akin to Horatius being compelled to gain permission from the Senate before presenting his case to the people of Rome.

So, it seems governments still seek to manage the right to plebiscite on political crimes. Instead of using the right to attack opponents or pass the buck, the modern thrust is to funnel the right through tightly defined structures that require prior governmental approval at several stages before invocation of the popular appeal.

Next Time: The Protection of Whistleblowers In the U.S.

Source:  The Guardian