CHAPTER 3: Legal and regulatory issues |
Is it ever acceptable to break
64. Journalists sometimes break the law. On occasion,
they may do so by hacking into celebrities' voicemail messages,
while on other occasions they may do so with a higher purpose,
in order to investigate a particular issue. We heard from witnesses
about where this might occur, and to what degree. We are conscious
in the context of this report of the inquiry currently being undertaken
by the Joint Committee on Privacy and Injunctions, which is considering,
amongst other issues, the statutory and common law on privacy,
the balance between privacy and freedom of expression, and how
best to determine whether and where there is a public interest
in material concerning people's private and family life, into
which there has been very considerable intrusion in recent years
which in some instances has been entirely unacceptable and damaging.
65. Mr Tom Giles, Editor, Panorama, told
us that there were occasions where the law is broken:
"There are cases, and undercover is one of themand
the Director General has spoken about this publiclywhere
technically we break the rules. Technically we break the law whether
it is on privacy or on giving a misleading CV in order to ensure
that we are able to go in undercover. In those cases there is
very clear prima facie evidence that this is something that is
of significant public interest. So I think there are times when
we do those things but we have to be very clear. They have to
be agreed both by me and by the controller of editorial policy,
and probably the director of news if it is significant enough,
because we obviously take matters like that very seriously. Then
we take a decision based on whether or not we have sufficient
information and evidence to go undercover and, secondly, whether
to broadcast it after we have gathered it."
66. Chris Birkett, Deputy Head of News and Executive
Editor, Sky, expressed a similar view, saying that:
"For us, there are times when the only way to
get the story is to do something that is contrary to the laws
of the country in which we are doing the journalism. It is illegal
to film as a journalist in parts of Syria right now and also in
other parts of the world. If you try to film openly, you will
be beaten up and arrested, your camera will be smashed and you
will be put in prison. That has happened so frequently to our
correspondents around the world and it is something with which
we are very familiar. We know that in order to get the story out,
which is of great significance to the rest of the world, on behalf
of the very people who are being repressed, we have to break the
law. We do not hesitate to do that because it has a very strong
moral, ethical and professional element. It is underpinned by
67. Mr Nick Davies, The Guardian journalist
who broke the phone-hacking scandal, told us that:
"I do not think journalists have any right to
break the law, other than a normal citizen has ... I think all
citizens have a right of conscience in extremis to say, 'This
is so important that I'm going to break the law'. If the only
way to stop the paedophile kidnapping the child he has abducted
is to hack his voicemail because I cannot get to the police and
I am going to be able to find the child, it is morally right you
are going to do it and you would expect the courts to find in
68. We have heard about the use of illegal methods
such as subterfuge or secret filming in order to uncover information
for investigations which are in the public interest. No one has
argued that journalists are above the law. Mr Alan Rusbridger,
Editor of The Guardian, said that:
"I think, by and large, you should stick within
the law. I think if you are not going to stick within the law
then you have as an individual to accept the consequences. I do
not think any journalist is above the law so if you are going
to break the law then I think you have to be honest about it and
you have to take the personal consequences."
69. In our opinion, the important practicalas
opposed to ethicalissues to be taken into account by journalists
and editors when considering whether or not to use potentially
illegal methods in order to obtain information which they believe
to be in the public interest are (i) would a decision to prosecute
be taken; and (ii) would a jury convict? Determining these issues
during the course of an investigation falls inevitably to the
journalist and their editor; and the buck, therefore, ultimately
stops with them. While this might not be straightforward, we will
present a number of recommendations which have the potential to
make this process significantly clearer and simpler than it is
70. We wholeheartedly believe that media organisations
themselves should take responsibility for the decisions they take
regarding how to investigate and whether to publish a story. In
coming to decisions on these matters, however, it is important
that journalists and editors do so in a way that is rigorous,
structured and leaves an audit trail for future external scrutiny.
The public interest
71. Questions about the public interest, which
in UK law is used to effect the balance between Article 8 and
Article 10 of the European Convention on Human Rights, lie at
the heart of these decisions. Jeremy Hunt MP, the Secretary
of State for Culture, the Olympics, Media and Sport, said that:
"No journalist is or should ever be above the law, just as
no Parliamentarian is or should ever be above the law, but journalists
do have a public interest defence."
72. Mr Paul Lewis, Special Projects Editor,
The Guardian, highlighted the importance of having strong reasons
relating to the public interest before attempting to use any illegal
method to access information. He said that: "I do not think
it is okay to deploy any form of deception just on a whim or because
you think you might get something. I think you need very strong
evidence, and it must be the only method available to you to prove
73. Mr Ian Squires, Controller of Current
Affairs and News Operations at ITV, expressed a similar view,
saying that at ITV:
"Part of the process through which you go is
understanding that if you are called to account for the actions
that you are about to unleash, or the programme that you are about
to commission, can you realistically, in a right-minded society,
stand up and justify those actions and show that in the end, in
all conscience and against any other measure that anyone cares
to throw at you, you behaved properly and in the public good?
The public good might be slightly different from public interest.
I think that is the kind of yardstick that you have to bear in
mind. I would not necessarily say you always start with a conscience-reckoning
but I would humbly suggest that the process I have described is
deeply informed by both a singular and collective conscience that
we all try and exercise."
74. Mr Paul Lewis went further, arguing
that deception could be justified under certain circumstances,
"Some very strong undercover filming investigations
have been done lately. The one that springs to mind is the care
homes story of Panorama. Now, those are the types of stories where
I think an element of deception is justified. There is a question
as to whether or not those journalists could have proven what
they did without having used undercover filming. Now, they would
have been breaking certain rules, certainly the rules of the care
home, but I think it was right that they did that."
75. We were told that in recent years, some judges
have been sympathetic towards arguments relating to the public
interest. John Lloyd, Reuters Institute for the Study of Journalism,
"My impression is that judges now tend to take
in more fully and more sympathetically an argument that is the
public interest defence; that is: this is justified, even if the
means were criminal and transgressed the law. They are more severe
on cases that interest the public, which are seen as salacious
but nobody's business but the person involved, but many judges
are more lenient on accepting a public interest defence for investigative
76. An example of this was highlighted by Chris
Birkett from Sky News who said:
"We purchased a gun over the counter without
the required documentation, authority, licence, whatever. It was
an illegal purchase. We did it because we thought it was worth
exposing the person who sold us the gun. It was a very simple,
obvious case whereby we broke the law but the law breaker we exposed
was doing worse deeds than that. At his subsequent trial we were
congratulated by the judge."
77. Another example of the attitude which may
be adopted by judges was brought to our attention by the Secretary
of State for Culture, the Olympics, Media and Sport, Jeremy Hunt MP.
He said that: "It is not for me to prejudge what the courts
might or might not say, but I think it is inconceivable that a
court would have ever found it was wrong for The Daily Telegraph
to do what they did because they would understand the public interest
78. There is a lack of clarity in this area which
can pose a significant problem for responsible investigative journalists,
who are unable to be sure in advance of breaking a particular
law whether this action will get them into trouble.
INTERPRETING THE PUBLIC INTEREST
79. We believe that there are three distinct
levels at which the public interest must be considered: First,
the criminal law; second, the regulatory codes; and third, internal
management and governance. We will address each in turn.
PUBLIC INTEREST AND THE CRIMINAL
80. Most pieces of legislation relevant to the
matters under discussion here do not contain a formal, statutory
defence relating to the public interest. For example, no formal
public interest defence exists in any of the following pieces
of legislation: the Regulation of Investigatory Powers Act 2000
(RIPA); the Official Secrets Act 1989; the Computer Misuse Act
1990 and the Bribery Act 2010.
81. However, exceptions do exist. The Data Protection
Act 1998, for example, contains an exemption to the Act for data
which is used for the special purposes of publication in any journalistic,
literary or artistic material, provided that the data is used
in the public interest.
As a point of fact, The Data Protection Act does not include a
definition of what constitutes the public interest. Instead, it
states that in assessing whether it is reasonable to argue that
publication would be in the public interest, the assessor should
have regard to the journalist's compliance with "any code
of practice which ... is relevant to the publication in question."
In cases of exemptions to the Act for journalistic purposes, this
means that the examples of public interest as outlined in the
Editors' Code of Practice or the Ofcom Broadcasting Code, as appropriate,
would be taken into account. The public interest exemption was
included in the Data Protection Act because the Government at
the time believed that the imposition of these rules without exemptions
for journalistic, literary and artistic purposes ('the special
purposes') would be damaging to freedom of expression.
82. The resulting inconsistency in legislation
often makes the decision for journalists and editors as to whether
they may be able to break a law in order to uncover certain information
and subsequently argue successfully the public interest in their
defence all the more difficult. Whether or not it would be possible
to do so would depend on which particular piece of legislation
had been broken.
83. An example of this was highlighted by the
Index on Censorship who wrote that: "Potentially, The Daily
Telegraph could have run a public interest defence if prosecuted
under the Data Protection Act for leaking MPs expenses claimsbut
not if were prosecuted under the Official Secrets Act. This is
clearly an anomaly".
84. Another example of this issue was given to
us by Mr Richard Caseby, Managing Editor of The Sun. He cited
a case in which he had sanctioned a reporter to bribe an official
at a Magistrates Court who they had reason to believe was accepting
bribes in order to remove driving offences from people's driving
licences. The official was subsequently found guilty of breaches
of the Bribery Act as a result of the story that was published
in The Sun. However, Mr Caseby highlighted the risk which
the journalist and the news organisation had had to take in order
to uncover this issue as there is no public interest defence in
the Bribery Act. He said:
"... that [bribing the Court Official in order
to prove the story] was a risk for the reporters, and I have to
say that, in the era we are in at the moment, those are sometimes
risks that they are unwilling to take ... But the only get-out
really is that, if a reporter is perhaps arrested in something
that I have sanctioned or one of our lawyers has sanctioned, the
company would protect themthey would obviously give them
a very strong legal defence. Our only position would be to go
to the DPP and say, 'it is simply not in the public interest to
pursue this prosecution', but that is not a lot you can promise
someone who is risking an entire career".
85. These examples demonstrate the inconsistency
between different pieces of legislation when it comes to whether
there is a statutory defence relating to the public interest.
We are aware of this and the practical challenges and uncertainty
it creates for journalists, editors and the prosecuting authorities.
For that reason we believe it is appropriate in considering any
future law to ask specifically whether a statutory defence relating
to the public interest should be included.
86. However, we believe it is not realistic for
all relevant existing criminal laws to be changed. Instead, a
less disruptive and more practical route to clarifying this area
lies with the prosecuting authorities. After all, as was mentioned
to us by the Secretary of State, in the recent case involving
the publication by The Daily Telegraph of information relating
to MPs' expenses: "It is inconceivable that a court
would have ever found it was wrong for the Daily Telegraph to
do what they did because they would understand the public interest
are clearly cases involving journalists who have broken the law
which have not been prosecuted on the grounds that the journalists
were acting in the public interest. It ought, therefore, to be
possible for those responsible for bringing prosecutions to publish
their broad approach, in exercising their discretion, as to how
they determine these kinds of decisions. There is precedent for
this, for example, in the CPS Policy for Prosecutors in respect
of Cases of Encouraging or Assisting Suicide.
87. We do not recommend that all relevant
criminal law be re-drafted in order to iron out inconsistency
between different pieces of legislation when it comes to a formal,
statutory defence relating to the public interest.
88. We do, however, urge the prosecuting authorities
to publish their broad approach to determining which cases should
be prosecuted or otherwise in cases where illegal activity undertaken
by journalists in the course of an investigation might be considered
to be in the public interest.
89. As we mentioned earlier, the framework within
which journalists and editors operate is shaped not only by the
criminal law, but also by the relevant industry-wide regulatory
codes of practice.
90. Both the Editors' Code of Practice and the
Ofcom Broadcasting Code provide a non-exhaustive list of what
might constitute a public interest exemption, rather than providing
a definition of the term. Mr Tony Close, Head of Standards
at Ofcom, explained that: "The public interest is a very
difficult thing to define. I am not sure, necessarily, it is good
to seek to define it; I think that might constrain investigative
91. The Ofcom Broadcasting Code provides examples
of what might constitute a sufficient public interest defence
for a breach of the Broadcasting Code. Tony Close said that:
"In the Broadcasting Code we include activities
and conduct that broadcasters might carry out that would be broadly
within, we think, the public interestexposing crime, exposing
wrongdoing, exposing incompetence in public officebut the
list is not exhaustive. I think the way I would normally approach
it is that a broadcaster would need to demonstrate to me a persuasive
argument that something was in the public interest, even if it
was not on that list of potential examples and based on the set
of facts at any given time we would be able to reach a judgement
92. Ms Dorothy Byrne, Head of News and Current
Affairs, Channel 4, said:
"I believe that Ofcom does not have a definitive
definition of the public interest and that in a democracy it is
probably correct that there should be no laid-down definition
of public interest. We have guidance for people to help them in
their thinking. We say to people that there is not an exhaustive
definition, but here are some of the things that they have to
think about. Are they exposing or detecting crime, corruption,
anti-social behaviour or injustice? Are they exposing lies, hypocrisy
or misleading claims made by individuals or organisations? Are
they protecting public health or safety? Are they disclosing incompetence,
negligence or dereliction of duty that affect others and are they
exposing dangerous or exploitative behaviour that could harm others?
I think that those are jumping-off points for people to really
examine together whether the programme that they are making is
of real significance."
93. The BBC Editorial Guidelines also include
examples, rather than a definition, of when it might be appropriate
to deviate from the Code with a public interest justification.
The Guidelines include examples of the public interest, similar
to those in the Ofcom Broadcasting Code, such as exposing or detecting
crime or anti-social behaviour, exposing corruption or injustice,
disclosing significant incompetence or negligence, protecting
people's health and safety, preventing people from being mislead
or disclosing information that assists people to make decisions
on matter of public importance. As with the Ofcom Code, the BBC
Code requires that, when using the public interest to justify
an intrusion, "consideration should be given to proportionality;
the greater the intrusion, the greater the public interest required
to justify it."
94. The Editors' Code of Practice is written
by a Committee of serving newspaper editors and enforced by the
PCC. It provides similar examples of what constitutes the public
interest and is something the DCMS has broadly endorsed: "On
a national level, or for more contentious issues, we believe that
the definition of what may be in the public interest set out in
the Editor's Code of Practice, overseen by the Press Complaints
Commission sets a useful working definition for journalists."
95. In December 2011 changes were made to the
Editors' Code of Practice which now require that in order successfully
to argue a public interest exemption to breaching the Code, an
editor must show not only that they had good reason to believe
the public interest would be served in doing so, but also how
and with whom that was established at that time.
96. The BBC Editorial Guidelines and the Editors'
Code of Practice differ from the Ofcom Broadcasting Code in that
they state that there is a public interest justification in freedom
of expression itself. This potentially offers more flexibility
in arguing a public interest defence for breaches of these Codes
than would be possible under the terms of the Ofcom Broadcasting
97. We do not recommend that a definition
of the public interest be included in legislation. Instead, it
should be defined by reference to good and responsible behaviour,
not least as defined in the relevant regulatory Codes of Practice
which contain examples of what could constitute a sufficient public
interest justification for breaching a rule or regulation. In
addition, in implementing such regulatory provisions, the regulator
should bear in mind the underlying rationale and purpose of the
rules they enforce.
98. We welcome the changes made in December
2011 to the Editors' Code of Practice requiring that in order
to argue a public interest exemption to breaching a certain section
of the Code, an editor must show not only that they had good reason
to believe the public interest would be served in doing so, but
also how and with whom that was established at that time.
INTERNAL MANAGEMENT AND GOVERNANCE
99. In addition to the standards laid out in
the relevant Codes, broadcasters and newspapers also apply internal
standards to a whole range of circumstances including assessing
whether it is appropriate to break a law or regulatory rule in
the public interest. Newspapers and broadcasters also can and
frequently do take legal advice prior to publishing on an issue
which they believe may be controversial.
100. Alan Rusbridger told us of the five bars
which he considers when making an editorial decision about whether
a rule or law can be broken with a sufficiently strong and proportionate
public interest justification. He said:
"The first bar is to consider the harm of what
is going to be done. So if you are going to do thingsall
journalism has an impactwhat is the harm going to be that
results from what you do? The second is: what is the good that
is going to result from what you do; what is the public good that
you are trying to achieve? The third is proportionality. Are the
methods that you are thinking of using proportional to the aims
that you are trying to achieve, and could they be achieved in
another way? The fourth is a kind of audit trail. It says, 'We
need proper authority' and that was obviously apparently missing
within the News of the World, that nobody knew anything about
it. You have to show some evidence that people have thought about
it and discussed it and that people have approved it. The fifth
is to do with fishing expeditions. You cannot justify a mass trawl
of the information in the hope that something will turn up."
101. Al Anstey, Managing Editor, Al Jazeera,
"If we are going to employ methods such as secret
filming, there are clear protocols, checks and balances and written
approval at three different levels within Al Jazeera English,
which always involve, rightly, a very intense debate, first and
foremost, about what the story is; the methods we need to employ;
and the credibility that those methods will give to the story
ultimately. Those three levels of check and balance are absolutely
critical. Oftentimes we will bring in legal counsel to discuss
exactly what we are doing. Sometimes there are clear-cut examples.
Syria is pretty clear cut. I think most people would suggest that
to be able to go and see what is happening in Syria right now
with our own eyes as journalists is an important element of freedom
of information and freedom of speech as to what is really going
on in the world. Sometimes there are areas that are perhaps less
clear cut, but, whatever it is, we need to apply those levels
of check and balance and bring in experts and legal counsel when
it is sensible and necessary, because for me it again comes back
102. The Guardian journalist, Nick Davies, recommended
that an independent advisory panel should be established by statute
"that can give serious advice in confidence to journalists
or anybody else who wants to know whether a particular course
of action which they are proposing is in the public interest."
Mr Davies' idea is that you would contact this panel in confidence
"'Here is what I know so far. Here is what I
am planning to do. Have I got public interest on my side?' and
they, in confidence, would give me advice, and I would then proceed.
If subsequently somebody sued me or the police tried to prosecute
me, that advice would be disclosed, and if they had said, 'You've
got public interest on your side' that would not be the end of
the argument, but it would be very weighty on my side. The contrary
would apply, so if somebody said, 'You haven't got public interest'
and I went ahead, it would weigh against me very heavily, but
it would not decide it."
103. The Chartered Institute of Journalists had
a different view. They told us that:
"The merits of a story should be assessed by
senior journalists within the media organisation they are working
for. Ultimately the decision is for the editor to take since he
or she is the person with whom both the legal and moral responsibility
rests. To use any other form of pre-publishing regulation would
undermine a free press. If there is an issue with a story post-publishing,
regulation exists in the form of the courts and the editor will
take full responsibility for any legal transgression."
104. In our view, there are two critical points
during the course of any investigation at which a journalist and
an editor would need to decide whether, by undertaking illegal
activity, they are likely to be prosecuted and found guilty by
a jury. The first arises when they decide to employ an investigative
method which breaks the law. The second arises when they decide
to publish a story which may risk them being prosecuted or found
in contempt of court.
105. In addition, there are two basic premises
which underlie the way we believe they ought to behave in making
these decisions. First, as a matter of principle, journalists
and editors should take responsibility for all decisions relating
to any investigation and publication of a story they have in mind
to pursue. Secondly, as a matter of practice, they are likely
to be the only individuals aware of an investigation's existence
before and while it is underway, and with that any details regarding
the potential legality of its methods. It is, therefore, incumbent
upon them to rationalise and justify each decision to investigate,
and to publish or not, on a case by case basis and to leave an
appropriate audit trail.
106. For these reasons, internal management clearly
represents an additional and important level at which questions
relating to the public interest areand ought to beconsidered.
The manner in which and the points in time at which such questions
are addressed may be informative, therefore, to the relevant regulator.
For example, while a regulator may take a different view from
an editor regarding the public interest represented by a published
story, it may nonetheless be able to recognise a greater or lesser
degree of responsibility in the manner in which the journalism
itself was undertaken. For this reason we believe that there would
be value in newspapers and broadcasters implementing a process
of internal management whereby they track and formally record
their thinking and decisions on these matters at the two crucial
points already mentioned. While this formal record would ordinarily
be private and retained by the relevant journalist or media organisation,
it would provide an audit trail disclosable to the relevant authority
107. Of course, in the event of a regulator discovering
a breach of its code, the newspaper or broadcaster in question
should be proactive in dealing with the consequences. However,
we also believe that the manner in which they do so should be
taken into account by the relevant regulatory authority and indeed,
that the regulators should make it clear in advance that this
behaviour will be taken into account when deciding what steps
it will take.
108. We recommend that media organisations
implement a two-stage internal management process whereby they
track and formally record their decisions first to investigate
and secondly to publish a story if such decisions rely on the
109. We believe regulators should, in turn,
take such an audit trail into account when evaluating the responsibility
or otherwise with which investigative journalism has been undertaken.
110. The regulators should also take into
account the actions taken ex post facto in considering what penalty
is appropriate for any particular breach.
111. As well as considering internal processes,
regulatory codes and the criminal law, we have also looked at
the way considerations of the public interest might affect aspects
of civil law, in particular defamation.
112. As outlined above, there is no definition
of what constitutes the public interest in the criminal law. After
considering this issue as part of its inquiry, the Joint Committee
on the Draft Defamation Bill recommended that the term 'public
interest' should not be defined in statute. Instead, the Committee
supported the Government's suggestion that the Defamation Bill
should provide a list of factors to be used to determine whether
a publisher had acted responsibly (subject to certain amendments
in the wording of this definition).
113. Several witnesses have spoken of the use
of legal challenge by rich and powerful individuals and organisations
to frighten off enquiries and to deter potential investigations.
This is clearly an improper use of legal process, whose primary
purpose is to uphold the rule of law and, in the case of defamation,
to protect the innocent and provide redress for those who have
been injured. Though these may be its proper purposes, defamation
laws have nonetheless been correctly described as a risk to investigative
journalism as in some cases the threat of legal challenge can
lead to certain stories not getting published because of the financial
risk which doing so might entail.
114. In particular, the libel laws in the UK
have been described to us by several witnesses as a threat to
investigative journalism. We heard from Alan Rusbridger that his
newspaper (The Guardian) had a team of half a dozen lawyers.
He said that: "The costs of fighting actions are substantial,
particularly if you have a very drawn out piece of litigation."
Mr Ian Hislop, Editor, Private Eye, agreed that threat of
litigation was a significant risk, although he said that: "You
are scared of getting colossal bills or ending up bankrupting
your own publication but it is possible to fight occasional cases
Mr John Ware, Reporter, Panorama, said that, "the libel
laws in this country are very onerous. I think they do mitigate
against matters of public importance that ought to get an airing
of some kind and are often prevented."
115. For local newspapers the issue may be even
more severe as they do not have the same legal resources available.
We heard from Eric Gordon, Founder and Editor, Camden New Journal,
that: "I have been saddled once or twice with enormous costs
built up by firms of solicitors, which were quite crippling. They
have not really inhibited me but they have made me more cautious.
Yes, it is a sword and it ought to be changed. The system is quite
rules are put in place to enable people to seek redress, it is
clearly essential that they allow peopleand institutionswho
have no money to do so.
116. A similar threat exists in broadcasting,
as we heard from Mr Roger Bolton, Presenter, BBC Radio 4's
Feedback, and former Editor of Panorama and This Week, who said
that: "Where, in the past, political pressure was more difficult
to deal with, now you are dealing withI know this has been
said to you in Committeea large number of companies with
lots of lawyers, who are paid, doubtless, a retainer to send out
a succession of questions, and so on."
Similarly, Mr Roger Graef, Producer of The Trouble with Pirates
(BBC) and Kids in Care (Panorama), said that: "The legal
barriers to this are going up all the time."
117. Ms Dorothy Byrne, Head of News and Current
Affairs, Channel 4, said that threats beyond litigation need to
be considered as well:
"They will not just try to threaten us with
libel actions, they will launch worldwide PR exercises against
usthere is one going on now against us about our investigation
into Sri Lankan war crimesand they will try to make complaints
to our bosses, they will leak stories against us to newspaper
diaries, they will go to our regulator and they will make potentially
scores of complaints against us."
118. Nick Davies was very critical of the libel
laws, claiming that "our libel laws are a laughing stock
around the world. It would be great to get rid of them and to
introduce the statutory requirement to correct false statements
with equal prominence."
119. Mr Stephen J Adler, Editor-in-Chief,
Thomson Reuters, told us that the libel laws in the USA enabled
a greater flexibility for investigative journalism than the system
in the UK. He described the need "to give credit for good-faith
efforts to get things right, because if you are trying to do responsible
investigative journalism in good faith, you will occasionally
get things wrong."
Mr Adler continued that:
"In the US, with the First Amendment system,
there is a reckless disregard standard if you are writing about
public figures or something that is deeply in the public interest
and that is certainly valuable. You must also give some credit
to what happens post publication, which the British system does
not do. At Reuters, we take it into account that we sometimes
make mistakes in good faith but we correct our mistakes promptly
and we prominently display the corrections. With those kinds of
protections in place, I think we provide more incentives to do
responsible journalism and differentiate between essentially the
rules governing responsible versus irresponsible journalism because
we are not saying we should protect people blatantly printing
falsehoods without doing it in good faith. We are saying we should
be protecting people acting responsibly in the public interest."
120. Mr Adler's sentiments were echoed by
Sir Harold Evans, a former editor of The Times and The Sunday
Times and Editor-at-Large, Thomson Reuters. He told us that: "The
legal restrictions in Britain, although Britain is of course a
glorious and free country, are still impediments to investigative
journalism of the responsible kind that Mr Adler has mentioned
that do not really exist in the United States."
121. However certain witnesses acknowledged the
positive aspects of the libel regime in the UK while also being
critical of it. Dame Liz Forgan DBE, Chair, the Scott Trust, said
"The legal consequence is something that any
investigative journalist has in mind. I would argue that the restraints
brought about by the toughness of the libel laws are too great
and should be looked at again. But anybody who does this work
has an eye in the back of their head as to what would be the costs
of failure, which is a good discipline if it means they check
their facts very carefully but a bad one if it frightens them
off doing it."
This sentiment was reiterated by Martin Bailey, Investigative
Reporter, The Art Newspaper, who said that:
"Our libel laws are obviously very tough. It
is a major constraint on investigative journalism. First, one
has to pay the legal costs of having copy read on sensitive issues,
even if they do not lead to any problems. On the other hand, the
libel laws concentrate our minds when we are writing pieces."
122. The Government is currently working on reform
of the law of defamation. In March 2011 the Ministry of Justice
ran a public consultation on a Draft Defamation Bill which contained
provisions reforming the law to strike the right balance between
protection of freedom of speech and protection of reputation.
123. Clause 2 of the Draft Bill introduces a
new defence to an action for defamation if a defendant can show
that the statement complained of is, or forms part of, a statement
on a matter of public interest and that he or she acted responsibly
in publishing the statement.
124. As already mentioned, the Draft Defamation
Bill does not attempt to define the public interest. The Government
noted in its consultation document that "the clause does
not attempt to define what is meant by the public interest".
This is a concept which is well established in the English common
law and, in view of the very wide range of matters which are of
public interest, attempting to define it in statute would not
be straightforward. It is made clear that the defence applies
if the statement complained of "is, or forms part of, a statement
on a matter of public interest" to ensure that either the
words complained of may be on a matter of public interest, or
that a holistic view may be taken of the statement in the wider
context of the document, article etc in which it is contained
in order to decide if overall this is on a matter of public interest."
We believe that this is the right approach.
125. The working of the libel laws in the
UK can, on occasion, have a discouraging effect on responsible
investigative journalism, and this needs to be examined. We welcome
the Government's work in this area and look forward to the introduction
of a Defamation Bill later in this Parliament, which we believe
should include provisions along the lines of those set out in
clause 2 of the Draft Bill.
126. Whistleblowers often play a fundamental
role in investigative journalism. As a result, several witnesses
stressed the importance of being able to offer them adequate protection.
127. On the one hand, this protection is part
of a journalist's general duty of care to their sources. Roger
Bolton, for example, said that an investigative journalist has
to "think through ... whether you cannot whether you
wish to, but whether you can protect them."
Gavin MacFadyen, Visiting Professor, City University and Director,
Centre for Investigative Journalism, underlined the point:
"We have a huge duty of care there ... We get
the credit for what they do and their lives are often destroyed.
They lose their homes, their families, their houses. They are
subject to terrible community pressures, often sometimes threats
by the police and on their lives. They have no recourse, except
through us in a sense." 
128. On the other hand, several witnesses argued
that more effective protection for whistleblowers is also the
responsibility ofand needs to be reviewed bygovernment.
Gavin MacFadyen, for example, said: "It is very important
for us to build a community of care for these people; it should
not be just us [however], it should be all of you as well. It
is really important."
Ian Hislop also called for stronger protection for whistleblowers,
saying: "I think it is very important that they are not penalised
for aiding in the process of investigative journalism."
Certainly, there have been recent cases in the NHS, for example,
which have shown existing legal protection for whistleblowers
to be inadequate.
129. In order to address this issue, Gavin MacFadyen
called for the Government to "provide greater shield laws
to protect journalists from arbitrary arrest and to protect their
sources and the evidence they produce. We live in a culture here
in Britain where we have fewer of those protections than most
European countries. Certainly much less than in the United States,
where every state has a different kind of shield law; those laws
tend to protect journalists' ability to shield his sources from
being forced to testify and from being forced to go public where
you know he may get killed, or hurt or savaged in some way."
130. It is important for the future of responsible
investigative journalism that journalists are able to offer adequate
protection to their sources. We therefore call on the Government
and Lord Justice Leveson to make the question of the suitable
protection of whistleblowers a core part of their ongoing inquiries.
PUBLIC RELATIONS PROFESSIONALS
131. We received considerable evidence about
the reliance of journalists on press releases and the problems
this can pose for accuracy and balance in the media. Nick Davies,
whose book Flat Earth News develops this point, described in his
evidence the way this might happen: "Reporters do not go
out and find stories, they do not go out and make contacts, and
they do not check facts. They sit and passively recycle press
This kind of passive reliance on public relations professionals
as sources may be anathemaand therefore not a particular
threatto investigative journalism. However, inasmuch as
it reflects a growing tendency among time-poor journalists more
generally, it clearly has the potential to diminish the investigative
character of journalism as a whole.
132. In addition, one indication that this reliance
may be growing lies in the increasing imbalance in sheer numbers
between PR professionals on the one hand and journalists on the
other. Certainly, the experience of a number of witnesses appeared
to confirm this trend; evidence from Mr Edmund Curran OBE,
Member of the Newspaper Society, for example, was typical: "When
I began my career hardly anyone was employed in the public relations
world ... and over the years I have seen whole offices virtually
depart towards that area."
133. Whatever the reasons behind it, this growing
imbalance has naturally led to a change in the nature of sources
which tend to be available to journalists on a day-to-day basis.
Nick Davies described this change: "When I started out as
a reporter ... if I wanted to do a story about the police, I rang
a police station and spoke to the desk sergeant; a story about
a hospital, spoke to the hospital manager. Over the first 10 years
of my career ... any individual or organisation who anticipated
being written about, employed press officers [and] created an
internal rule that it was a disciplinary offence to talk to the
the extent that investigative practice can rely on journalists'
ready access to unmediated sources, the disproportional growth
in the number of PR professionals acting deliberately as gatekeepers
to first-person sources may serve to frustrate or impede the investigative
character of day-to-day journalism. We have heard, for example,
how the role of PR practitioners can be as much to withhold and
protect stories from media attention as it is to influence their
treatment once they are being discussed. Nick Davies, for example,
said: "Before you get to distortion and falsehood, the key
thing that PR people do is they choose which stories we should
apparently growing trend may, therefore, be of concern.
134. However, a number of witnesses also spoke
about the way journalists and news organisations actually benefit
from working with public relations professionals. Perhaps most
obviously, PR practitioners, who now regularly work for a wide
range of organisations from strictly commercial enterprises, to
political parties and interest groups, can provide journalists
with stories which are more or less ready to publish, thereby
saving considerable time and resource. Mr Phil Hall, former
editor of The News of the World, gave us an example: "If
you are representing a diet company and somebody has lost a lot
of weight ... they [the journalist] will make a quick check call
to the person involved and it [the story] will run in."
Another example mentioned by Phil Hall included a case where he
acted against the more cautious instincts of his employers by
actually inviting investigative journalists to pursue a story
into the rumoured closure of half of his employer's UK operations.
As gatekeepers and conduits to first-person sources, PR professionals
can both stimulateas much as they can thwartthorough
investigative work by journalists. PR professionals are clearly
neither inherently nor necessarily a block on investigative journalism.
Instead they can either help or hinder journalistic investigation
and our concern is simply that they act openly and honestly rather
135. However, one of the characteristics of this
sector as it stands is that, as Ms Jane Wilson, Chief Executive
Officer, Chartered Institute of Public Relations (CIPR), told
us, only approximately one sixth of those engaged in PR are signed
up to the Code of Conduct of the CIPR.
It is very much an unregulated activity, and there is currently
no comprehensive system of self-regulation. Of course, the CIPR,
which works on behalf of individual PR practitioners, does exercise
a degree of 'professional' oversight of the industry, together
with the Public Relations Consultants Association (PRCA) which
represents the interests of PR companies. However, given the CIPR
is a voluntary organisation, its capacity to enforce its code
seems, in practice, to be relatively light and of course, its
current reach only extends into a small part of this industry.
This has highlighted the real need for the responsible PR industry
to strengthen its internal system of self-regulation, and thereby
increase public confidence in their industry and their work.
136. In addition, a problem arises from the fact
that there is no waynor, of course, should there beto
prevent any individual inside or outside the PR industry itself
from issuing a press release. This does mean, however, that it
can be difficult for those on the receiving end to establish its
credentials. This, of course, represents a similar problem to
that faced by journalists using online sources more generally.
It therefore only serves to underscore the need for journalists
to be professional in their use of information provided to them.
It may also help if journalists act as transparently as possible
in their use of material provided by PR practitioners. For example,
there are no real barriers online to publishing links to full
versions of press releases that have been used to inform a particular
137. It is worth mentioning, of course, that
some of the biggest culprits of 'spin' and misleading information
are political parties, for example, with regards to the lines
to take which they provide to party members. Although accurate,
these often include a range of carefully selected facts on a particular
issue which serve to support the party's political position.
138. In addition, in its report on Government
Communications, our Committee explained that: "One of the
most important tasks of government is to provide clear, truthful
and factual information to citizens. The accurate and impartial
communication of information about government policies, activities
and services is critical to the democratic process."
Since then, the Government has launched a broad Open Data agenda,
a data.gov.uk website and has announced investment in a new Open
Data Institute. Nonetheless, during the present inquiry, Ms Clare
Sambrook, freelance journalist, Co-editor, OurKingdom, Winner
of the Paul Foot Award and the Bevins Prize for Outstanding Investigative
Journalism, suggested that the transparency being applied to data
may not yet extend to Government communication in general. She
spoke to us of "the distortion that I noticed, coming back
into journalism ... in Government press releases, so not just
boosterism, but just plain misrepresentation and distortion."
139. In the context of investigative journalism,
it is incumbent upon journalists and news providers to be rigorous
and proactive in checking the accuracy of press releases, as with
other sources of news, as part of their commitment to accuracy.
In addition, we recommend that journalists themselves be transparent
in their use of press releases particularly online where barriers
to publishing links to press releases are low.
140. To address the concerns that the Committee
has heard about the potential adverse impact of the public relations
industry on investigative journalism, we recommend that PR practitioners
should abide by a stringent code of behaviour which could be derived
from the existing CIPR code or something similar, and which might
be overseen by a third party.
141. We also reiterate the recommendation
made by the Committee in 2008 on the need for the Government to
communicate accurately and in an impartial way information about
its policies and we urge the Coalition Government to set the benchmark
in this area by ensuring that their press releases are universally
transparent and straightforward. The Government and political
parties should require their press officers to follow guidelines
similar to those found in the CIPR code of conduct.
142. We encourage the Government to lead by
example in ensuring its press releases do not mislead and in particular,
when data is made public, it is in forms which enable those capable
of analysing it to do so, as advocated by the Open Data Institute.
57 Q 139 Back
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Q 9 Back
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Q 667. The Secretary of State was referring to the Daily Telegraph's
purchase of information which formed the basis of their exposé
on MPs' expenses. Back
Section 32 (1) of the Data Protection Act 1998 Back
Section 32 (1) of the Data Protection Act 1998 Back
PCC note on Data Protection Act, Journalism and the PCC Code:
English PEN and Index on Censorship Back
QQ 803, 804 Back
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BBC Editorial Guidelines, Section 7: Privacy Back
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Ministry of Justice Public Consultation on the Draft Defamation
Bill, March-June 2011: http://www.justice.gov.uk/consultations/365.htm
Draft Defamation Bill, section 2(1)(a) Back
Ministry of Justice public consultation on the Draft Defamation
Bill, March-June 2011: http://www.justice.gov.uk/consultations/365.htm Back
Q 199 Back
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Communications Committee, 1st report (2008-09): Government
Communications, (HL Paper 7) Back
Q 86 Back
Technology Strategy Board News Release, 29th November 2011. Available
online: http://www.innovateuk.org/_assets/0511/open%20data%20institute%2029nov11%20final%20(2).pdf Back