The Creeping Criminalization of Journalism

The New York-based Committee for the Protection of Journalists is blunt in its assessment of the state of journalism around the world today: “There has never been a more dangerous time to be a journalist,” it declares in its #FreeThePress campaign.

According to the CPJ’s count, by the end of last year, 262 journalists around the world were in prison for their work. That is the highest on record, since the organization began tracking the numbers in 2000.

Freedom House agrees. It’s grim headline in the 2017 report is “Press Freedom’s Dark Horizon.”

It goes on to say, “global press freedom declined to its lowest point in 13 years in 2016 amid unprecedented threats to journalists and media outlets in major democracies and new moves by authoritarian states to control the media, including beyond their borders.”

If we appear to be heading into journalism’s long, dark night, when did the sun start to disappear? Although the statistics jump around a little, there appears to be a clear turning point, in 2003, when the numbers of journalists killed and imprisoned started to climb from the historic lows of the late 90s, to the record levels of the present.

Although coincidence is not the same as causation, it seems hard to escape the notion that the War on Terror that President George W. Bush launched after 9/11 had something to do with it.

“In this war, either you are with us, or you are with the terrorists,” Bush ominously told a historic joint session of congress soon after the attack on the Twin Towers. For journalists, that stark statement had two devastating implications.

First, the War on Terror presented a binary choice: you are on one side of the line, or the other, making it impossible to exercise genuine balance and neutrality in reporting the conflict – one of the most basic ethical tenets of our craft. Anybody who sought to understand what drove the extremists, or challenged the government’s policies in the war, immediately became accused of “promoting terrorist ideology”, or of being unpatriotic, or of seeking to legitimize terrorism. At best, it meant being demonised and condemned; at worst, being charged – as my two colleagues and I were in Egypt – with collaborating with terrorists.

And that leads to the second implication: The War on Terror gave politicians the scope to grant governments a host of new “national security” powers, and in the process, redefine “terrorism” so loosely as to include whatever they wanted.

Take Turkey.

In July 2016, a faction within the Turkish Armed Forces called the “Peace at Home” Movement tried to overthrow the government of president Recep Tayyip Erdogan. The attempted coup failed, and Erdogan accused the exiled Gullen Movement of being behind it. He then declared anybody associated with the movement, and soon after, anybody who challenged the government, of being “terrorists”. Erdogan began rounding up thousands of lawyers, academics and journalists – anybody who dared question the president’s legitimacy – as a threat to national security.

In April this year, an Istanbul court issued an arrest warrant for independent journalist Can Dündar on espionage charges, and asked Interpol to issue a warrant of its own. The charges stem from a report Dündar published in the newspaper Cumhuriyet while he was editor-in-chief about alleged smuggling of weapons into Syria by Turkey.

Dündar is a recipient of CPJ's International Press Freedom Award and he has lived in exile in Europe since 2016, when a Turkish court sentenced him to seven years for ‘revealing state secrets’. Dündar’s case is one of the most prominent in Turkey, but it is by no means extraordinary.

According to the CPJ’s figures, Turkey is now the world’s most prolific jailer of journalists, with 73 behind bars by the end of 2017 (Freedom House counts slightly more, with 76, while one Turkey-based organization puts the number at 145). Most are there on charges related to the coup or terrorism more broadly. Thousands more have either been sacked or forced to resign, hundreds have lost their press credentials and an unknown number have had their passports confiscated. At least 150 media organizations have been forced to close and had their assets seized.

Egypt is the world’s third most prolific jailer of journalists with at least 20 currently in prison, again almost all on charges related to terrorism and national security. In January 2014, my two Al Jazeera colleagues and I were charged with aiding a terrorist organization, being members of a terrorist organization, and broadcasting false news with intent to undermine national security. (I was also charged with financing a terrorist organization). We were convicted and sentenced to seven years hard labour, though the sentences were later reduced to three years when we appealed and were once again convicted in a retrial.

The closest the prosecution came to providing ‘evidence’ was alleging that because Al Jazeera interviewed members of the Muslim Brotherhood, and we were employees of Al Jazeera, we were therefore part of a conspiracy to support a terrorist movement trying to overthrow the state by force.

Since then, Egypt has tweaked its laws to define terrorism so loosely that anything deemed to be a threat to national stability could be considered as an act of terror. Even “preventing or impeding the public authorities in the performance of their work” counts.

Between January and May last year, Egyptian courts sentenced at least 15 journalists to prison terms ranging from three months to five years on charges related solely to their writing, including defamation and the publication of what the authorities found to be “false information”.

Most recently, parliament in Malaysia passed a law against “fake news” punishable with fines of almost $170,000 and up to six years in prison. It is up to the government to define what counts as “fake”.

As disturbing as the stories of Turkey, Egypt and Malaysia are, they are consistent with a much wider trend. Around the world, the CPJ reckons about two-thirds of all journalists in prison are on charges that could generally be described as “anti-state” such as terrorism, sedition, treason and so on, quite deliberately echoing the national security rhetoric – and sometimes the tactics – from more liberal democracies.

Take the United States, and President Barack Obama.

Yes – Obama. For all his claims to championing human rights and democracy, in the opinion of James C. Goodale, Obama was ‘worse than (President Richard) Nixon’ for press freedom. (Though to be fair, Obama was personally and actively involved in the campaign for our release in Egypt.)

Goodale should know. He was the New York Times counsel in the paper’s 1971 fight with Nixon to publish the Pentagon Papers – the leak of documents showing that previous administrations had lied about the Vietnam War.

In an article published in 2013, Goodale complained about Obama’s tendency to use national security legislation to shut down what Goodale regarded as legitimate reporting. In particular, the Obama administration relied on the little-used Espionage Act passed in 1917 to prosecute journalists or their sources over stories that were more politically embarrassing than they were damaging to national security. All together Obama put the Espionage Act to work eight times – more often than all his predecessors combined – with investigators often trawling through digital communications to find the evidence they needed.

“Until President Obama came into office, no one thought talking or emailing was not protected by the First Amendment,” Goodale wrote. “President Obama wants to criminalize the reporting of national security information. This will stop reporters from asking for information that might be classified. Leaks will stop and so will the free flow of information to the public.”

Note that phrase, ‘criminalize the reporting of national security information’. In the innocent days before 9/11, it would have been hard to imagine anybody applying it to the United States, much less a seasoned lawyer. But 9/11 has radically changed the landscape, and where the US leads, Australia tends to follow.

Professor George Williams from the University of New South Wales has been tracking national security legislation since Al Qaeda attacked the World Trade Centre. Before then, he could find only one law on Australian statutes that referred to ‘terrorism’ – a relatively obscure one from the Northern Territory – but since then, Australian governments have been on something of a legislative spree passing some 70 laws dealing with national security. That is understandable given the perceived threat that terrorism now poses, but according to Williams, many of those laws “frequently included restrictions on freedom of speech through new sedition offences and broader censorship rules.”

At least four impose criminal sanctions for journalists, and at least 12 pieces of legislation curb freedom of speech. Others give the authorities extraordinary powers that might be considered as legitimate in a time of war, but in a conflict as open-ended as ‘The War on Terror’, we seem to be stuck with.

There is the Data Retention Act of 2015, which gives a host of government agencies the power to examine the metadata of any Australian without a warrant. The only exception is journalists; those agencies that want to look into a journalist’s metadata have to apply to a special magistrate who holds secret hearings to decide whether or not to issue the warrant. With no such protection for a journalist’s sources though, it is hard to see why any of the agencies would bother when they can dig around the data of anybody who they think might have been in contact with a reporter.

Section 35p of the ASIO Act makes unauthorised disclosure of any ‘special intelligence operation’ (SIO) punishable by up to 10 years in prison. Even the SIO designation is top secret, so any journalist interested in a botched operation – surely a legitimate area of inquiry – could unwittingly find themselves behind bars for a very long time.

The Foreign Fighters Act of 2014 criminalizes travel to any region that the minister declares to be a zone where terrorists are active. In their defence, Journalists can argue that travel to, say, Afghanistan, was for ‘legitimate purpose’, but the burden to prove legitimacy rests with the reporter; not the prosecutor.

More troubling is the offence of ‘promoting terrorist ideology’- a crime disturbingly similar to what we were accused of in Egypt. So, interviewing extremists in an attempt to understand what drives young men to join militant groups could break the law.

Earlier this year, the Attorney General’s office forced news.com.au to pull a story headlined “Islamic State terror guide encourages luring victims via Gumtree, eBay”. The AG’s office cited section 9A of the Classification (Publications, Films and Computer Games) Act arguing that the story “directly or indirectly” advocated terrorist acts. The Press Council eventually said the story had legitimate public interest and ruled in favour of publishing, but not before it had vanished from the website.

Most recently, we have seen the government try to pass a raft of laws that claim to protect Australia from foreign interference. At the time of writing, the legislation was still being debated, but media critics complained they have been so widely cast that they seemed to assume any ‘unauthorised” communication of classified information between a commonwealth civil servant and a journalist was tantamount to espionage.

Together, the laws have led to what Liberal Democrat senator David Leyonhjelm describes as the greatest clampdown on freedom of speech in decades.

“Bit by bit they have been chipping away at freedoms. The cumulative effect had been the most significant erosion of rights in recent memory.”

This is not to suggest that Australia is about to become Turkey any time soon, but the forces eroding press freedom are largely the same. It is worth reminding Australians that one of the reasons we live in one of the most stable, prosperous and peaceful nations on the planet, is a system of democracy that includes a robust and largely unfettered press fiercely capable of holding the powerful to account.