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Privacy Rights in the Digital Age

Official Secrets Act

by Douglas B. McKechnie

The United Kingdom's legislation that protects secret government information relating to national defense, intelligence gathering, and international relations, and penalizes its disclosure. Originally passed in 1889, the act was amended multiple times throughout the twentieth century, with its most recent amendment in 1989. Throughout its history, it has been used to punish those who release sensitive state secrets and was considered as a means to prosecute the Guardian newspaper's release of Edward Snowden's files, which revealed eavesdropping by the United States and the United Kingdom.

First enacted in 1889, the Official Secrets Act was a response to the failed prosecution of two men who leaked information regarding British negotiations with foreign powers. Because the government lacked a law specifically prohibiting the disclosures, the leakers were acquitted. The government then began work on a new law titled the “Breach of Official Trust Bill,” which would punish these sorts of revelations not because of the value of the information but, as the title indicates, because of the offender's breach of the government's trust. Ultimately, after various additions, the Breach of Official Trust Bill was enacted in 1889 as the Official Secrets Act. Twenty-two years later, in response to public concern about German spies, the act was amended as the Official Secrets Act of 1911. While the intent of the 1911 act continued to focus on prosecuting spies, the new act contained controversial amendments. For example, it placed the burden of proof on the accused; the prosecution had no burden to prove guilt.

A 1920 amendment to the act came in the wake of attacks by the Irish Republican Army and the Irish civil war. The act was amended again in 1939 in reaction to the threatened prosecution of Duncan Sandys, a member of Parliament. Sandys had raised a question in the House of Commons about London's inadequate air defenses and refused to disclose his source of information detailing the inadequacies. Throughout the twentieth century, there were various attempts to amend the 1939 version of the act; all proved unsuccessful.

It was not until two scandals rocked the British government in the 1980s that the act was most recently amended. Roger Hollis, a former British spy, wrote a book recounting his time working for the British government, including his attempts to root out Soviet spies. The British government responded by unsuccessfully attempting to ban the book. In addition, Clive Ponting, an employee with the British Ministry of Defense, leaked documents describing the British sinking of an Argentine navy vessel during the Falklands War. Ponting was prosecuted for violating the act. He raised a public interest defense in arguing that revealing the documents were in the public interest and any damage to the state was outweighed by the public's benefit from knowing the information. His defense succeeded and he was acquitted. In response, Parliament amended the act in 1989 and, among other things, removed the public interest defense. As a result, the act places a blanket, unqualified ban on the disclosure of confidential state information except under prior, official authorization.

The act primarily prohibits the disclosure of information pertaining to security and intelligence, military defense, and international relations. The act also prohibits the disclosure of information that results in the commission of a crime, aids the escape of a prisoner, impedes the investigation of crime, or impedes apprehension of a suspect. The act applies not only to a government employee or contractor who might leak information but also to third parties, such as newspapers, that may come to possess the protected information. Those third parties are prohibited from publishing the information and can be prosecuted for doing so. This lack of a public interest defense, along with a prohibition on publication by newspapers, has raised freedom of speech and press concerns as well as concerns about transparency and the public's right to know.

Those concerns were expressed at various times in 2013 when a British newspaper, the Guardian, ran an exposé and published classified documents collected by Edward Snowden, a former Central Intelligence Agency (CIA) employee and U.S. government security contractor. Working with Snowden, the Guardian published a series of articles exposing the U.S. and British governments' bulk collection of Internet data. In response, a British member of Parliament, Julian Smith, scheduled a parliamentary debate about whether the Guardian was guilty of treason and called for the newspaper to be prosecuted under the Official Secrets Act. Those who possessed the Snowden documents were also threatened with prosecution under the act. For example, Glenn Greenwald was one of the main authors of the Guardian's Snowden articles. His partner, David Miranda, was detained at London's Heathrow Airport on his way from Germany to Brazil. Miranda had in his possession some of the Snowden documents and was detained. Miranda was ultimately released, but the British government considered prosecuting him under the Official Secrets Act for his role in transporting the documents.

Most people accept that governments must protect some state secrets and prohibit their distribution if it would be harmful to national security. A tension exists, however, between governments' desire to keep information secret and the public's desire to have access to information. With a lack of a public interest defense and the authority to punish journalists for publishing newsworthy information, governments can rely on legislation like the Official Secrets Act to hide large-scale violations of privacy that are all the more possible in the digital age.

Further Reading

1 

Feuer, Katherine. “Protecting Government Secrets: A Comparison of the Espionage Act and the Official Secrets Act,” Boston College International and Comparative Law Review Vol. 38, no. 1 (2015).

See also: Greenwald, Glenn; Snowden, Edward; Whistleblowers

Citation Types

Type
Format
MLA 9th
McKechnie, Douglas B. "Official Secrets Act." Privacy Rights in the Digital Age, edited by Christopher T. Anglim & JD, Salem Press, 2016. Salem Online, online.salempress.com/articleDetails.do?articleName=PRDA_0155.
APA 7th
McKechnie, D. B. (2016). Official Secrets Act. In C. Anglim & JD (Ed.), Privacy Rights in the Digital Age. Salem Press. online.salempress.com.
CMOS 17th
McKechnie, Douglas B. "Official Secrets Act." Edited by Christopher T. Anglim & JD. Privacy Rights in the Digital Age. Hackensack: Salem Press, 2016. Accessed September 17, 2025. online.salempress.com.