BCL partner Michael Drury was quoted in an article from Law360 titled ‘Assange Victory Leaves Whistleblowers, Journalists Hanging’.

Here’s an extract from the article:

Assange’s defense submitted that he should have been protected under Article 10 of the European Convention on Human Rights, which provides the right to freedom of expression and information, arguing that the criminalization of the “gathering of information” offends the core of those protections.

They argued that Article 10 of the ECHR would sanction these disclosures, as the risk of harm to a small number of sources — described by the defense as “unintentional, small and unsubstantiated” — would be weighed against the risk of harm to “millions,” whom the defense described as “potentially subject to global-scale ongoing war crimes and torture.”

But Judge Baraitser ruled that free speech “does not provide an unfettered right” to decide the fate of others, saying that in stark contrast to WikiLeaks’ indiscriminate disclosure of all of the data, newspapers who had worked with Assange from both sides of the Atlantic condemned his decision.

The judge held that in an era where “dumps'” of vast amounts of data onto the internet can be carried out by almost anyone, it is difficult to see how a concept of “responsible journalism” can sensibly be applied.

“The judge found that the OSA complies with Article 10 because it only criminalizes those who disclose protected materials which are damaging and which they have disclosed knowing, or having reasonable cause to believe, would be damaging,” said Ingham.
In her ruling, Judge Baraitser relied on the 2002 judgment in R v. Shayler . In that case, a former member of the Security Services was charged with the unlawful disclosure of a number of documents to journalists from British newspaper the Mail on Sunday.

The judge concluded in that case that the Official Secrets Act did not allow for a public interest defense and found that the law didn’t conflict with the ECHR.

According to BCL Solicitors LLP’s Michael Drury, Baraitser’s ruling doesn’t extend the scope of the Official Secrets Act.
“It reinforces the fact that under Shayler, the act is consistent with Article 10 of the ECHR, that the harm requirement exists, and that the U.S. government’s case is that harm was caused,” Drury said.

This article was originally published by Law360 on 08/01/21. You can read the full version on their website.