I was surprised, after reading Professor Clive Walker’s post The British Library Did Not Need to Self-Censor to find that his “assurance” to the British Library – that “the chances of prosecution under UK terrorism… are negligible” – “depends” on what he recognizes is an “assumption” as to (a) “what is contained in the TSP” and (b) “how it is then disseminated by the British Library.” These are enormous, fact-sensitive, caveats and since Professor Walker’s “assurance” depends on such caveats, I can see why he proffers it “probably forlornly.”
I am also puzzled by the importance which Professor Walker attaches to the fact that the Afghan Taliban is not a proscribed organization under the Terrorism Act. The definition of terrorism in section 1 is not restricted to acts taken for the benefit of proscribed organizations. Indeed, section 1(5) makes it clear that such acts are merely one example of terrorism: “In this Act a reference to action taken for the purposes of terrorism includes a reference to action taken for the benefit of a proscribed organisation.” (emphasis added) The fact that the Taliban is not a proscribed organization does not mean that it “follows” that “the mere holding of materials is most unlikely to involve any offense.” If the Taliban was a proscribed organization then that might make it more likely that holding/giving access to the TSP could be an offense but it does not follow that since the Taliban is not a proscribed organization it is less likely (or, indeed, “most unlikely”) that holding/giving access to the TSP could be an offense. Whether that is so will turn on a fact-sensitive assessment of the two factors, (a) and (b), noted above.
I agree with Professor Walker’s final observation: “[i]f the TSP is really not terrorism-related, what is to stop [the TSP researchers] setting up their own web page (or using some existing site) and making their archive available to the world?” That would, indeed, require them to show the courage of their convictions and whether they do so may be the acid test regarding the nature of the collection.