A Censurable Censure
Some of you will remember when I got a letter from Bindemans LLP intimidating me to remove all references about their client, Mr. Henri Herman Exton, a former MI5 agent, from an article titled 'Mark Hollingsworth Investigates The McCann Files', published on 28 August 2009, in the London Evening Standard magazine, republished here, in this blog and on our forum on the same day.
In a letter, dated September 23, 2009, Bindemans LLP requested me to remove allegedly ‘confidential information’, in observance of a DA-Notice 5. Which we at this blog and forum complied, though we did not and do not recognize the validity of the Defence Advisory system on Portuguese soil.
Nevertheless, this attempt by Bindemans LLP to suppress Mr. Henri Exton name and job was illogical if not useless.
Mr. Henri Exton was already known to the public and was given prominence in the world-wide media on 2008, when the McCann parents and millionaire businessman Brian Kennedy hired Oakley International, the Investigative firm owned by Mr. Henri Exton, to find Madeleine McCann.
The attempt to censor Mark Hollingsworth’s pertinent article backfired and resulted in the article being published in several other blogs, sites and forums, some of which also have the Madeleine McCann case as a subject matter; the consequences were a clear demonstration of the Streisand effect.
Yesterday, David Leigh and Richard Norton-Taylor co-wrote an article at the Guardian that is, at least, surprising, even if it makes little sense. Read on.
Ex-MI5 agent in memoirs battle sues newspaper for naming him
Lawyers for undercover agent in war on terrorism threaten Guardian with injunction though his name circulates online
A former MI5 secret agent is suing the London Evening Standard for revealing his name, his lawyers say, in an attempt to extend Britain's privacy laws to cover the identity of intelligence officers.
The agent is also threatening the Guardian with a high court injunction if the paper re-publishes his identity. The Guardian is therefore withholding details, for the time being, that might give clues to his identity.
The man's name continues to be available online, where legal complaints have failed to silence foreign bloggers and websites which specialise in intelligence leaks. His lawyers say: "We do not agree that the information is in the public domain."
The altercation highlights once again the difficulty of suppressing information in the online age. What makes the case doubly unusual is that the agent is simultaneously fighting his former employers in the name of free speech. He wants to be allowed to publish his memoirs under a pseudonym.
His 300-page manuscript is provisionally entitled Siberia after the codeword he was given to use when in danger during a decade-long undercover career that began with other crime-fighting organisations and progressed to infiltrating international terrorists. The issue of his memoirs has already reached the new supreme court, where a hearing took place last month under the cryptic heading "A v B".
His solicitor, Tamsin Allen, says he might be in personal danger if his name continues to leak.
She claims that the British media break the law if they publish the name of any intelligence officer, saying: "Proceedings for breach of confidence are being issued against the Standard." The paper has deleted the article naming him, but copies are circulating on the internet. Coincidentally, the Standard was bought this year by a former Russian KGB officer, Alexander Lebedev.
Under the so-called DA (Defence Advisory) system, Whitehall officials already have voluntary discussions with editors to protect serving and former intelligence officers from genuine security risks. This system could come under strain if it is replaced in future by lawsuits.
The memoirs case reached the supreme court because MI5 wants the arguments heard in secrecy at the investigatory powers tribunal, with no right of appeal or normal rules of evidence, rather than at the high court. Judgment is awaited on which is the right jurisdiction. The tribunal was set up for a different reason, to hear complaints from people who believed they had been wrongly bugged or burgled.
Allen wrote in June in the magazine Index on Censorship: "He was a senior and trusted MI5 official with a critical role in the history of anti-terror intelligence operations … when his career ended he wrote a thoughtful and considered autobiography. It was critical of MI5 and the way it treats its own field agents. But he applied his considerable experience to distinguish between real secrets and information which was already in the public domain or was harmless."
While a junior member of another crime-fighting organisation, the former agent was decorated for feats of false identity. He is reported to have allowed himself to be beaten up to protect his cover. He also worked against armed robbery gangs.
In the early 1990s he transferred to work for MI5. With the end of the cold war, the agency extended its role by targeting organised crime, arms traders and, eventually, jihadist terrorists. He was awarded the OBE  and also an Order of Merit by an unidentified foreign government.
He says he came to suffer from post-traumatic stress disorder and was mistakenly arrested at one point. This led to local publicity. The former agent later set up as a consultant, which led to his MI5 links becoming more widely-known and eventually published.
The use of anonymity and secrecy is increasing in the legal system. The supreme court this month listed an appeal by Mohammed al Ghabra disputing that his assets should be frozen as an al-Qaida financier. He was described as "G" until anonymity was overturned by a media complaint.
Oil traders Trafigura obtained an anonymous high court "super-injunction" over a Guardian report on dumped toxic waste. That too was overturned after parliamentary questions and internet disclosures. MI5 and MI6 are currently calling for evidence of collusion with torture to be concealed even from lawyers for Binyam Mohamed in his damages claim. It is the first time the government has demanded such secrecy in a civil case. In the Siberia affair, Jonathan Evans, the head of M15, refused permission for the book publication in August 2007, although the vetted memoirs of former MI5 head Stella Rimington came out in 2001 and an authorised history of MI5 by Christopher Andrew, commissioned in 2002 , was published this month. Critics say it does not tell the full story.
Disclosures began 20 years ago with the collapse of legal efforts to suppress Spycatcher, the unauthorised memoirs of the retired MI5 assistant director, Peter Wright.
Related: D-Notice 5
Ex-British intelligence agent is suing the Lebedev's newspaper (original in Russian, google's translation)