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The Assange case and the UK’s global defence of media freedom

Published on April 15, 2019        Author: 

Human rights advocates often point to the lack of consistency and coherence between states’ stated commitments, on the one hand, and their actions, on the other. Even then, the tensions surrounding the UK’s recent approach to the goal of protecting media freedom globally and its projection seem striking.

Within less than a week, the UK government has gone from showcasing its new campaign to defend media freedom – specifically the appointment of the Foreign Secretary’s Special Envoy and a panel of legal experts “to support countries to repeal outdated and draconian laws and strengthen legal mechanisms to protect journalists”, as well as an international conference to be held in London on 10 and 11 July, co-hosted with the Canadian government (on 5 April) – to facing a chorus of warnings from wide range of human rights organisations, authorities and activists  – including the American Civil Liberties Union, Human Rights Watch, the Committee to Protect Journalists, the Knight First Amendment Institute, the UN Special Rapporteur on freedom of expression, David Kaye, and Pentagon Papers whistleblower, Daniel Ellsberg – that the UK’s possible extradition of Julian Assange to the United States to face, at the moment, a single charge of conspiracy “to commit computer intrusion” would pose a threat the lawful and legitimate activity of journalists, especially their communications with their sources, setting a “dangerous precedent” for the future prosecution of “legacy” news media organisations.

Against the backdrop of alarming trends of physical attacks against journalists – which are annually tallied by such organisations as Committee to Protect Journalists, the International Press Institute and Reporters without Borders – the Foreign Office’s campaign with its apparent focus on journalistic safety is to be welcomed. While a certain focus upon freedom of expression projects had existed under the Foreign Secretary’s predecessor, this latest initiative potentially offers a way in which the UK can carve out its leadership in a particular thematic area of human rights, especially at a time when its role within UN bodies risks being diluted under the spectre of Brexit. As a foreign policy initiative, it can also be distinguished from the position of UK authorities towards the issue of extradition. The UK government has emphasised rule of law-based arguments, repeating that Assange’s case “is now a legal matter before the courts” (Prime Minister, Theresa May) and “no one is above the law” (Foreign Secretary, Jeremy Hunt), and that “it is absolutely right that Assange will face justice in the proper way in the UK” (Minister for Europe and the Americas, Sir Alan Duncan) and “we implement the judicial process fairly and consistently, with due respect for equality before the law” (Home Secretary, Sajid Javid). Such framing, however, downplays the active role that the UK government, not only the judiciary, will play in any extradition process under the Extradition Act 2003. The full extradition request from the United States would need to be made to and certified by the Home Secretary before being submitted to the court. Even if the courts uphold the extradition, the Home Secretary retains a discretion to refuse it. If there is a competing extradition request from Sweden in the event that the investigation into an allegation of rape there is resumed, the Home Secretary will also decide upon which request is heard first by the courts.

Whereas UK ministers emphasise the role of the judiciary in this case, the UK’s global standing on media freedom hangs on the actions of UK’s state authorities assessed altogether. As Human Rights Watch’s Executive Director wrote in the Guardian, “the only thing standing between an Assange prosecution and a major threat to global media freedom is Britain”. And whereas the UK government may wish to separate the Foreign Office campaign from Assange’s extradition case, the way in which the latter proceeds will surely affect the success of the former. The UK’s own record on media freedom, which has been placed under greater scrutiny through the outpouring of commentaries against Assange’s possible extradition to the United States, will be even more exposed as the Foreign Office campaign progresses, particularly around the time of the July conference. The ability of the Foreign Office to effectively promote the work of the Foreign Office’s legal panel – which is intended to, among other things, “[offer] advice to governments”, “[encourage] and [support] governments to help ensure … international obligations are enforced” and “[promote] best practice … to protect a vibrant free press” – will be particularly challenged if Assange is indeed extradited to the United States. The possibility of Assange’s extradition will predictably be raised in intergovernmental fora, notably the Human Rights Council which next meets in two months time, by other states wishing to level a charge of hypocrisy against the UK and the United States and also to deflect attention away from their own poorer, often dire, freedom of expression records, in a way that is reminscent of references made concerning the revelations of mass surveillance by Edward Snowden. The threat of Assange’s arrest may also serve to push the UK further down freedom of expression rankings. Already noted as “one of the worst-ranked Western European countries, largely due to a heavy-handed approach towards the press, often in the name of national security” last year, the UK has worryingly dropped eleven places from 29/180 in 2013 to 40/180 in 2018 in Reporters Without Borders’ World Press Freedom Index, in between Trinidad and Tobago and Burkina Faso.

The UK’s leadership on media freedom depends on the UK’s own credibility in the field. Shoring up the UK’s standing in the field requires three obvious steps.

First, the UK should ensure that the long-standing guarantees of legitimate journalistic practices, including protecting the confidentiality of sources and publishing leaked public interest information, are not eroded through Assange’s prosecution in the United States.

Second, it means that the Foreign Office’s global campaign should be rooted in the existing body of international law on media freedom – especially concerning the safety of journalists, notably a series of Human Rights Council and Security Council resolutions, culminating in Human Rights Council 39/6 of 27 September 2018 which offers a comprehensive international legal and policy framework to tackling the issue to date – as well as existing global initiatives –  particularly the UN Plan of Action on the Safety of Journalists and the Issue of Impunity and UNESCO’s monitoring in the area. Given there has been normative proliferation and an increase in mechanisms on the issue of journalist safety (though the proposal for a Special Representative of the Secretary-General has still not been accepted), the Foreign Office’s legal panel should address how to tackle the “implementation gap”, an issue that preoccupies organisations such as ARTICLE 19, but which is not only or even primarily a matter of legal expertise, but rather requires a broader, interdisciplinary understanding of the regional, national and local impediments to application of legal standards.

Third, it requires the UK setting an example by critically taking stock of its own domestic and foreign policies, as well its colonial legacy. In terms of domestic policy, free speech organisations have raised serious concerns about negative implications of the enacted legislation, notably the Investigatory Powers Act 2016 and the Counter-Terrorism and Border Security Act 2019 upon protection of journalistic sources, as well as about the  regulatory framework proposed in the Online Harms White Paper published on 8 April, which is sweeping in its scope and might restrict the ability of media outlets to post comments on their websites. As the focus of the Foreign Office campaign, the defence of media freedom also presents a distinct moral basis for reassessing the UK’s trading relationships with those states with egregious media freedom records, including Saudi Arabia whose air strikes in Yemen have not prevented UK arms sales to the country, thusfar at least. Finally, the Foreign Office campaign could help to pressurise many Commonwealth states to repeal “outdated and draconian laws”, which have their roots in colonial provisions and for which therefore the UK bears a certain historic responsibility. Laws on criminal defamation, blasphemy and sedition, for instance, still exist in many Commonwealth members, including India, Pakistan, Bangladesh and Malaysia, and are calling out for abolition. The Foreign Office campaign could therefore serve as a test of the UK’s ability to exercise its leverage amongst its Commonwealth partners in particular and on freedom of expression terms.

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