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s.76 Counter-Terrorism Act 2008: Photojournalism or Terrorism?
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by ectomorfo | February 16, 2009 at 03:36 pm
967 views | 55 Recommendations | 6 comments
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From today, a photojournalist taking photographs of police officers whilst documenting political dissent or public disorder on the streets of the UK may be deemed to have committed a criminal offence under section 76 of the Counter-Terrorism Act 2008.
Section 76 provides that:
(1) A person commits an offence who -
(a) elicits or attempts to elicit information about an individual who is or has been -
(i) a member of Her Majesty's forces, (ii) a member of any of the intelligence services, or (iii) a constable,which is of a kind likely to be useful to a person committing or preparing an act of terrorism, or
(b) publishes or communicates any such information.
(2) It is a defence for a person charged with an offence under this section to prove that they had a reasonable excuse for their action.
(3) A person guilty of an offence under this section is liable -
(a) on conviction on indictment, to imprisonment for a term not exceeding 10 years or a fine, or to both;
(b) on summary conviction -
(i) in England and Wales or Scotland, to imprisonment for a term not exceeding 12 months or to a fine not exceeding the statutory maximum, or to both; (ii) in Northern Ireland, to imprisonment for a term not exceeding 6 months or to a fine not exceeding the statutory maximum, or to both.
In other words, a photojournalist carrying out his occupation may be arrested for taking and publishing a photograph of a police officer if the police consider that the image is "likely to be useful to a person committing or preparing an act of terrorism". If the photojournalist is then charged, he or she would have to prove a "reasonable excuse" for having taken the picture.
Hundreds of press photographers and film-makers today protested against this new legislation outside New Scotland Yard. The National Union of Journalists and British Press Photographers' Association have also expressed concern that it will threaten press freedom.
Already, photojournalists working in the UK frequently find themselves harassed by police officers using stop and search powers under section 44 of the Terrorism Act 2000.
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Most RecentMost Recommended Comments (6)
at 16:04 on February 16th, 2009
Yeah, this is a law that isn't required. I've been stopped a few time by cops.
at 18:27 on February 16th, 2009
In Toronto Canada I was stopped in 2006 by the Police as I was trying to take some Pictures, Apparently since 9/11 one can no longer take pictures of the CN tower or any Government Building. Every Photographer could assess the Ground for a terrorist strike.
Similar things did happen in Hokkaido at the G8.
at 17:01 on February 16th, 2009
It is true that people are becoming increasingly freaked out by anyone with a camera. And these days who doesn't have a camera? My father, an amateur fine art photographer was once stopped for taking photos of an empty field... I mean, really...
at 19:46 on February 16th, 2009
Yeah, Ive been stopped in London. The police told me a lie: they said they were tackling terrorism, but they trying to catch bus fare dodgers. I did not know about this new law at the time. Thanks for bringing it to our attention. I hate the police!
at 22:17 on February 16th, 2009
Good gracious! I suppose in the UK everyone would be terrified to film footage like the videos that were made at the scene of Oscar Grant's shooting by a BART officer in CA on Jan. 1, right?
Good article, but very bad news.
Mary
at 05:53 on March 3rd, 2009
I am a (retired) lawyer. I have looked at the wording about which everyone seems to be so worried and cannot understand why the new section should be a problem.
Section 58 of the Terrorism Act 2000 reads as follows:
Section 76 of the Counter Terrorism Act 2008 adds a new section 58A to the Terrorism Act 2000, which means that the earlier Act is the context in which the new section has to be read. It reads:
Now Section 58 quite clearly includes photographs in the list of ‘records’ which may be useful for a would-be terrorist, but Section 58A refers not to collecting or making records, but to eliciting
information, which is in my view a wholly different thing. The new section 58A could have referred to making or collecting a record e.g. photographing someone in the list of people in subsection 1, but it does not. Indeed, there would be no point as the general wording of Section 58 already covers the taking of photographs of such people for nefarious purposes.
Instead, Section 58A uses the word ‘Elicit’. So then, as a matter of normal construction, elicit must be intended to mean something else. And, of course, it does. If you look up ‘elicit’ in a dictionary, then it has the meaning of drawing out information which would otherwise remain latent or hidden. It implies that the information is not there on the surface, but has to be found out in some way. A photograph is quite correctly referred to in Section 58 as a record of information. It is not a means of finding it out. It is not eliciting. Section 58A (1) (a) has nothing to do with taking photographs as such.
If this is right, then it seems to me that the publication or communication of any such photograph does not come within the ambit of Section 58A either, The natural interpretation of S 58A (1) (b) (publishing or communicating 'such information') is that 'such information' is elicited information. This is, however, almost irrelevant as, if it were held to refer to any information which comes within the original Section 58, i.e. if it were ‘information of a kind likely to be useful to a person committing or preparing an act of terrorism’, then an offence would already have been committed anyway under Section 58 by the taking of the photograph. It should be borne in mind, in any event, that the mere taking of a photograph does not constitute publication or communication.
Of course, if you tracked a police officer from the police station to his house and then took his photograph outside his house so that both he and his house were easily identified, then the fact that you had taken the trouble to take that photo would be prima facie evidence that you were committing an offence both under section 58 and section 58A. You would be eliciting information (his address) by following the officer (offence under Sec. S58A) and recording it by making the photograph (offence under Sec. 58).
I am not in this comment intending to give anyone legal or other advice on which they should act. It is up to each reader to come to his or her own conclusion as to the meaning of the legislation and/or take advice from a suitably qualified lawyer.