The British government, increasingly desperate to silence a former MI5 intelligence officer who has been campaigning to expose government misconduct, has sued him and a London newspaper under the novel doctrine that publishing government documents without permission violates copyright law. The move has ominous implications for the media, including those outside Britain. Since copyright infringement is a civil rather than a criminal offense, it is more likely to be enforced by courts around the world. American media may be vulnerable under this new legal strategy.
The British lawsuits, filed at the end of February, came after the government failed to prosecute David Shayler, a former MI5 intelligence officer now living in Paris, under Britain’s draconian Official Secrets Act. Shayler went public in 1997 with information from intelligence agency files. His most serious allegation–subsequently corroborated–was that MI6 was involved in a 1996 assassination attempt on Libyan leader Muammar el-Qaddafi without permission from Prime Minister John Major. (MI5 is the domestic secret service, while MI6 works abroad.) Shayler also reported that MI5 had files on current Cabinet ministers and pop stars, including John Lennon [seeWiener, “Lennon’s MI5-FBI Files,” March 13].
After Shayler’s initial reports, the British government enjoined British newspapers from publishing further revelations from him about MI5, and he fled the country to avoid pros ecution under the Official Secrets Act. After he surfaced in France, the British government began extradition proceedings, and Shayler spent nearly four months in a French prison before the French courts ruled in his favor. Since then he has remained in Paris, where his website (www.shayler.com) and frequent interviews with the world’s media have continued to expose MI5 misconduct.
All the information Shayler supplied to the media documenting MI5 misconduct and abuse of power is copy righted by the government, the new lawsuit claims, and the news papers that published it infringed on the government’s copyright and therefore must pay damages. According to Richard Norton-Taylor, who has covered the story for The Guardian, the lawsuit “makes clear that the government wants the power to sue newspapers and broadcasters whenever they publish allegations about intelligence agencies without prior authority.”
The target of the lawsuit is the London tabloid Mail on Sunday, the first to publish Shayler’s revelations in August 1997. The government seeks damages based on the newspaper’s profits from extra sales of the paper resulting from its Shayler coverage. Apparently the government hopes that attacking media profits with this strategy will provide a more effective means of censorship than pursuing criminal charges under the Official Secrets Act.
The government lawsuit lists nine publications and TV companies that are charged with infringing on Crown copyright by using Shayler’s information. But only the Mail on Sunday is being sued for damages, at this point. The government has seized on this new legal strategy because the original 1997 injunctions against the London press forbidding them from publishing Shay ler’s revelations have proven unsuccessful at silencing Shayler–largely because he has published information on the Internet or outside Britain.
The implications for US media are complex. American copyright law is clear, according to Floyd Abrams, a leading First Amend ment attorney, that the federal government has no copyright on its documents. “The theory of copyright protection is to encourage people to creativity by protecting their creations,” he said. “It’s an inducement the government does not need.” If, for example, Nixon had claimed that his “enemies list” was copyrighted and that the newspapers that published it owed him damages, he wouldn’t have been able to collect.