This post is the latest installment of our “Monday Reflections” feature, in which a different Just Security editor examines the big stories from the previous week or looks ahead to key developments on the horizon.
On August 28, 2015 the British Library publicly stated that it would not acquire or give access to the digital archive of materials collected by the Taliban Sources Project (TSP). This decision, coming from “one of the world’s greatest research libraries” and “a place of knowledge and inspiration, encouragement and engagement” has been criticized by academics/researchers as “madness” and “completely, completely ridiculous.” But, from a legal perspective, the British Library’s self-censorship is a predictable consequence of the UK’s broad terrorism laws and so if that self-censorship is to be criticized then it is important not to lose sight of the root cause of such decisions — the underlying law. It is only then that progress is likely: the effectiveness of the law can be practically assessed, its content re-appraised and, who knows, lessons may even be learned and applied to future counter-terrorism proposals engaging academic freedom.
I consider the law and the Library’s decision below but, first, a little background. The TSP, “a major initiative to preserve an unprecedented collection of original Taliban print and audio materials,” was launched in February 2012. The materials were acquired by three researchers — Alex Strick van Linschoten, Felix Kuehn, and Anand Gopal — who lived and worked in Afghanistan for a number of years (together “the collectors”). The collection “includes poetry, maps, night letters, press releases, transcripts of radio broadcasts, memoirs, and 10 volumes of Taliban laws and edicts. It also contains full runs of dozens of official Taliban newspapers and magazines published between 1996-2001.” The collectors have said that there are “no recipes for making bombs or anything like that” in it and that “most of [the collection is] pretty innocuous.” They say the collection is important because “[i]t gives you access into [the Taliban’s] world view, allows you to understand what kind of organisation they built and attempted to build. It allows you to look deeper into their world.”
The British Library’s August 28 statement says that, in July 2015, discussions took place between the Library and Thesigers, a consultancy representing the TSP, to discuss whether the Library would be willing to acquire and give access to “their large digitised archive.” The statement continues,
Although the archive was recognised as being of research value, it was judged that it contained some material which could contravene the Terrorism Act, and which would present restrictions on the Library’s ability to provide access to the archive for researchers. The Terrorism Act places specific responsibilities on anyone in the UK who might provide access to terrorist publications, and the legal advice received jointly by the British Library and other similar institutions advises against making this type of material accessible.
From a legal perspective the rationale behind this cautious decision is not difficult to understand. This is for the following five reasons.
First, there are at least three potential bases on which criminal charges could be brought against the British Library it if was to acquire or give access to the TSP. These are: (1) section 58 of the Terrorism Act 2000 (TA2000); (2) section 1 of the Terrorism Act 2006 (TA2006), and (3) section 2 of the TA2006.
Secondly, these three sections are very broadly drafted (as is illustrated by the summary below) and capable of applying to a very wide range of material. Unsurprisingly, therefore, the British Library’s statement explains, “it was judged that [the TSP] contained some material which could contravene the Terrorism Act.” (This implies that some sort of review or analysis was conducted by the British Library although the basis of this review is unclear in the light of Thesigers’ comment: “the British Library only ‘reviewed a catalogue of titles’ and was, therefore, not in a position to know that it would be legally problematic.”)
- Section 58 of the TA2000 makes it an offense for a person to possess an electronic record which contains information “of a kind likely to be useful to a person committing or preparing an act of terrorism.” The House of Lords has added the gloss that records will only fall within section 58 if they are “likely to provide practical assistance”: R v. G  1 AC 43, §43. The scope of section 58 is made broader by the “very wide” and “very far reaching” (R v. Gul  AC 1260, §§ 26, 29) definition of terrorism in section 1 of the TA2000. Terrorism is defined in section 1 as (a) the use/threat of action which involves serious violence against a person, serious damage to property, endangers a person’s life, creates a serious risk to the health/safety of the public/section of the public or is designed seriously to interfere/disrupt an electronic system; (b) the use/threat is designed to influence the government or intimidate the public/section of the public; and (c) the use/threat is made for the purpose of advancing a political, religious, racial or ideological cause. This definition also applies to offenses created by the TA2006: see section 20 of the TA2006.
- Section 1 of the TA2006 applies to a statement that is “likely to be understood by some of all members of the public to whom it is published as a direct or indirect encouragement or other inducement to them to the commission, preparation or instigation of acts of terrorism or Convention offences.” Statements that are “likely” to be understood in this way include statements which glorify the commission/preparation (whether in the past/future/generally) of such acts/offenses and from which the public could reasonably be expected to infer that they should emulate that glorified conduct: section 1(3). Section 1(2) makes it an offense if a person publishes such a statement and, at the time of publication, (a) intends members of the public to be directly or indirectly encouraged or otherwise induced by the statement to commit/prepare/instigate acts of terrorism/Convention offenses, or (b) is reckless as to whether members of the public will be directly/indirectly encouraged or otherwise induced by the statement to commit/prepare/instigate such acts/offenses. (Convention offenses are listed in Schedule 1 of the TA2006.) It is irrelevant whether any person is, in fact, so encouraged or induced by the statement in question: section 1(5).
- Section 2 of the TA2006 makes it an offense, amongst other things, for a person to provide a service that enables others to read or look at a “terrorist publication” where that first person either (a) intends an effect of his conduct to be direct/indirect encouragement or other inducement to the commission/preparation/instigation of acts of terrorism; (b) intends an effect of his conduct to be the provision of assistance in the commission/preparation of such acts; or (c) is reckless as to whether his conduct has an effect as to (a) or (b). A publication is a “terrorist publication” if matter contained in it is likely (i) to be understood by some/all of those to whom it might become available as a direct/indirect encouragement or other inducement to the commission/preparation/ instigation of acts of terrorism, or (ii) to be useful in the commission/preparation of such acts and to be understood by such persons as being contained/made available in the publication wholly/mainly for the purpose of being so useful to them: section 2(3). Material that is likely to be understood as such includes anything which glorifies the commission/preparation (whether in the past/future/generally) of terrorism and from which the reader/viewer could reasonably be expected to infer that they should emulate that glorified conduct: section 2(4).
Thirdly, given the very broad scope of these charges, it is questionable whether the Library would be able to identify inoffensive materials in the TSP and, therefore, acquire or give access to them. Even if this is possible, it would probably be preceded by a time consuming and expensive exercise, given the size of the TSP and the wide-ranging and nuanced nature of the applicable legal parameters. Whether an institution wishes to engage in such an exercise is a matter for its discretion.
Fourthly, even if the Library undertook such an exercise and then acquired or gave access to the TSP, there remains the risk that some materials might be regarded as falling within the scope of the three potential charges. If so:
- Although there are defenses which are likely to be available to the Library (especially under the TA2006), these defenses are unlikely to ameliorate the unattractive prospect of a criminal prosecution being brought in the first place, together with the adverse publicity that would undoubtedly follow. And,
- The prospects of success regarding such defenses is difficult to predict since they may depend on fact-sensitive issues. For example, section 58 of the TA2000 permits the person charged to defend himself by showing that he had a “reasonable excuse” for possessing the records. However, it is unlikely to be enough for the British Library to simply assert that the material was held by it with a view to facilitating academic reference/research because merely having “an explanation that the document or record is possessed for a purpose other than to assist in the commission or preparation of an act of terrorism” does not constitute “reasonable excuse”: R v. G, §§73, 77. Thus, the Library might be required to show that it had considered and reasonably rejected the prospect of the particular material in question assisting in the commission/preparation of an act of terrorism. The Library is unlikely to be comforted by the prospect of risky fact-sensitive defenses.
Fifthly, the consent of the Director of Public Prosecutions is needed before any of three potential charges can be brought against a person (section 117 of the TA2000 and section 19 of the TA2006). As the House of Lords put it, “[t]his can be seen as an acknowledgment that the nature of these offences is such that not all contraventions of the provisions should be prosecuted. More positively, the need for this consent should help ensure that prosecutors do indeed give due consideration to the public interest and do not embark on prosecutions in cases which do not merit it.” (R v. G, §85) However, this does not help in clarifying the extent of the Library’s potential exposure because (a) the DPP considers such “consent” cases by reference to both an evidential test and a public interest test (Code for Crown Prosecutors, §3.7) and therefore there is wide prosecutorial discretion, and (b) there is no mechanism by which the Library could seek an advisory steer from the DPP as to the prospect of prosecution.
Given this legal framework, the British Library’s decision is unsurprisingly cautious. The decision, and the criticism it has attracted, raise the question of whether, in a climate of encroaching restrictions, it is for such world class institutions to stand up for freedom of expression, even if such a stand comes at a price — for example, in this case, by requiring the British Library to undertake a costly review of the TSP with a view to omitting/redacting those materials that might fall foul of UK terrorism laws. For the reasons I gave at the outset, questions such as these, significant as they may be, should not distract attention from the root cause of this kind of self-censorship — the laws themselves.