Whistleblowers safety fears in the digital age

1 March 2017

A report by media lawyers has concluded that whistleblowers need better legal protection because they are far easier to identify in the modern digital age. Successive laws brought into force in recent years have also been responsible for undermining their status, according to the report.

The study by the Institute of Advanced Legal Studies (IALS) at London University has found that journalists are finding it increasingly difficult to safeguard the anonymity of their sources online due to the increased monitoring and intercepting of communications.

The report is a stark contrast to the Law Commission's report published last month in relation to updating the Official Secrets Act. It supports significantly increasing prison sentences for leaked official information and dismisses the idea of introducing a public interest defence. The Commission's findings have been widely condemned by human rights organisations and whistleblowers alike.

The Investigatory Powers Act (IPA) and the Digital Economy Bill currently going through Parliament have been reviewed by media lawyers, who report that there are significant weaknesses in the legal protection offered to whistleblowers by these instruments. For example, communications metadata – defined as data which could be used to track down and prosecute sources will belong to the telecoms provider and not the journalist, therefore tracking could occur without the journalist's nor the source's knowledge, leading to the source's prosecution.

A defence currently exists within the new Digital Economy Bill – namely publication in the public interest. However, the report warns that uncertainties remain about how that defence would be interpreted by judges in court.

The report calls for the IPA to be brought in line with the UK's international human rights obligations so that journalists and their sources are sufficiently protected by law.

A Government spokesman says, however, that "far from weakening" protection for whistleblowers, the IPA has strengthened the safeguards in place, and any public body seeking to use communications data to identify a journalist's source must seek consent to do so from a senior judge.

This is not legal advice; it is intended to provide information of general interest about current legal issues.