House of Lords - The future of investigative journalism

The future of investigative journalism - Communications Committee Contents

CHAPTER 3: Legal and regulatory issues

Is it ever acceptable to break the law?

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 them—and the Director General has spoken about this publicly—where 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."[57]

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 those."[58]

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 your favour."[59]

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."[60]

69. In our opinion, the important practical—as opposed to ethical—issues 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 at present.

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."[61]

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 that story."[62]

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."[63]

74. Mr Paul Lewis went further, arguing that deception could be justified under certain circumstances, saying that:

"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."[64]

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, said that:

"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 journalism."[65]

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."[66]

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 involved."[67]

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 LAW

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.[68] 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."[69] 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.[70]

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 claims—but not if were prosecuted under the Official Secrets Act. This is clearly an anomaly".[71]

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 them—they 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".[72]

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 involved."[73] There 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.

REGULATORY CODES

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 journalists".[74]

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 interest—exposing crime, exposing wrongdoing, exposing incompetence in public office—but 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 about that."[75]

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."[76]

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."[77]

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."[78]

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 Code.

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 things—all journalism has an impact—what 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."[79]

101. Al Anstey, Managing Editor, Al Jazeera, explained that:

"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 to trust."[80]

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 and say:

"'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."[81]

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."[82]

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 are—and ought to be—considered. 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 if necessary.

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 public interest.

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.

Civil law

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.[83] He said that: "The costs of fighting actions are substantial, particularly if you have a very drawn out piece of litigation."[84] 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 and survive."[85] 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."[86]

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 poor."[87] Whatever rules are put in place to enable people to seek redress, it is clearly essential that they allow people—and institutions—who 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 with—I know this has been said to you in Committee—a large number of companies with lots of lawyers, who are paid, doubtless, a retainer to send out a succession of questions, and so on."[88] 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."[89]

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 us—there is one going on now against us about our investigation into Sri Lankan war crimes—and 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."[90]

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."[91]

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."[92] 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."[93]

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."[94]

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 that:

"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."[95]

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."[96]

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.[97]

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.[98]

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."[99] 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.

Sources

WHISTLEBLOWERS

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 can—not whether you wish to, but whether you can protect them."[100] 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."[101]

128. On the other hand, several witnesses argued that more effective protection for whistleblowers is also the responsibility of—and needs to be reviewed by—government. 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."[102] 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."[103] 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."[104]

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 releases."[105] This kind of passive reliance on public relations professionals as sources may be anathema—and therefore not a particular threat—to 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."[106]

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 press".[107] To 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 write."[108] This 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."[109] 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.[110] As gatekeepers and conduits to first-person sources, PR professionals can both stimulate—as much as they can thwart—thorough 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 than obstructively.

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.[111] 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 way—nor, of course, should there be—to 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 article.

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."[112] 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."[113]

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.[114]

57 Q 139 Back

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67 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

68 Section 32 (1) of the Data Protection Act 1998 Back