Copyright as Censorship
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.
On the other hand, American media might be vulnerable to claims of copyright infringement by the British government. How ever, "it's unlikely an Amer ican court would support such a claim," Abrams says, "because it seems at odds with First Amendment principles. A number of courts here have refused to enforce British libel judgments for that reason. It's even less likely that this kind of copyright judgment would be enforceable."
But assuming the British courts accept the argument that their government documents are copyrighted, Abrams says, "they would certainly have a pretty good shot at getting most countries to enforce their judgments." Thus while the French, for example, have refused to extradite Shayler for criminal prosecution, they are much more likely to enforce the civil claim that Shayler must pay damages--in this case, to the British government.
American publications distributed in Britain--like The Nation--could be sued by the British government for copyright violation in that country. Even if there is no distribution of a foreign publication in Britain, a US publication with a website--like thenation.com--could be sued in Britain for copyright violation on the website if authorities could find a way to serve the owners of the website with legal process. Under US law, a claim of copyright violation merits prior restraint of publication--one of the very few exceptions to the First Amendment prohibition on prior restraint.
Shayler is being defended by Liberty, the British counterpart to the ACLU, and Liberty director John Wadham. Because Brit ain lacks a Bill of Rights guaranteeing freedom of speech and the press, Wadham argues, Shayler is protected by Article 10 of the European Convention on Human Rights, guaranteeing free dom of expression. It will become enforceable under British law in October.
The British press has been outspoken in condemning Tony Blair's government for the latest moves against Shayler. One of the most eloquent voices has been that of Peter Preston, who was editor of The Guardian from 1975 to 1995 and is currently chairman of the British office of the International Press Institute. Preston denounced the legal "harassment" of the press, which he said was intended to "make other reporters and other papers put David Shayler on the spike of forgetfulness," and was intended as a "general retribution to deter once and future whistleblowers." He pointed to repressive regimes around the world that imprisoned or killed dozens of reporters last year for revealing official crimes--"And what do they say when our ambassadors or visiting delegations of protest come to call? That why, dear sir, are you so upset? That we are doing nothing that you do not do yourself."
When Shayler first claimed MI6 had planned a 1996 assassination attempt on Qaddafi, Foreign Secretary Robin Cook dismissed the claim as "pure fantasy." But the Sunday Times of London proclaimed Shayler vindicated in February when a website published top-secret documents showing that MI6 had advance knowledge of the attempt, in which several innocent bystanders are believed to have been killed.
Since then more revelations have surfaced about the Qaddafi assassination attempt. Shayler included the names of two MI6 officers alleged to have participated in the failed plot in a file he submitted to the government when he urged prosecution of the two. He provided the same information to The Observer and The Guardian, which reported the story without publishing the names. But the government went to court in March and got a judge to order Martin Bright of The Observer to hand over his notebooks along with any documents or e-mails from David Shayler about the assassination plot. Bright has refused and faces imprisonment, since in Britain journalists have no immunity from court orders to disclose their sources. "The prospect of jail really is my worst nightmare," Bright told The Independent. "Let's face it, I'm a middle-class journalist.... I would be lying if I said I wasn't worried about doing time." The editors of The Guardian were also ordered to hand over documents relating to an opinion piece of Shayler's they published.
Both newspapers are fighting the court order, and international press organizations have appealed to Tony Blair to stop the action against them. The Guardian has reported that Foreign Secretary Robin Cook is "furious" over this "serious attack on press freedom" by the Home Office.
Meanwhile, in February the names of the two MI6 officers were published on a US website run by Yahoo (since closed down) and in a Portuguese maga zine. Then they were published in Brit ain--in defiance of a High Court injunction--in an article by Stephen Dorril in the journal Free Press, which is published by the Campaign for Press and Broadcasting Freedom. (The article is online at www.cpbf.demon.co.uk/FreePress/freepress.htm#10. Dorril is the author of the new book MI6: Inside the Covert World of Her Majesty's Secret Intelligence Service.)
Shayler is following in the footsteps of three former CIA agents who went public exposing agency crimes. Victor Mar chet ti was the first former CIA employee to attempt to publish a book about his experiences. The agency went to court and got a permanent injunction barring publication until he submitted his manuscript to the CIA for review. The court then ordered extensive deletions of what they said was classified material. Marchetti's The CIA and the Cult of Intelligence (co-written by John Marks) was published in 1974, with white space in place of the deleted passages. A new edition published in 1980 contained some previously deleted passages.
Philip Agee published Inside the Company: CIA Diary in 1975, without agency review. He had been a CIA agent who during the Vietnam War came to view US policy as wrong. His book, a sweeping exposé of agency misconduct, named names of agents. As a result of Agee's book and political activities, the United States pressured five NATO countries to expel him and eventually revoked his passport. The book was translated into nineteen languages. He went on to write a memoir of the experience, On the Run, published in 1987. Today Agee lives in Havana and promotes tourism from the United States at his website www.cubalinda.com.
Frank Snepp also worked for the CIA in Vietnam. In 1977 he published his book Decent Interval, in which he argued that we betrayed the Vietnamese who'd depended on us. The New York Times featured the book on its front page. Since Decent Interval contained no classified information, Snepp published it without CIA clearance. Nevertheless, the agency promptly sued him. The Supreme Court ruled that his failure to submit his manuscript for CIA review had "inflicted 'irreparable harm' on intelligence activities vital to our national security." The agency confiscated $200,000 in royalties, and Snepp also lost the right to publish any thing in the future about the CIA without first receiving agency authorization. Last July he published an account of his case, Irreparable Harm--which did receive CIA clearance. He has a website at www.franksnepp.com.
The British government calls Shayler a traitor. In fact, he's a whistleblower who has exposed government abuse of power. He recently wrote in The Observer that he was only "standing up for the basic principles of freedom of expression, democratic accountability and freedom of information."