I’m one of the lecturers on a final year optional module, Media, Entertainment & Sports Law. Fairly early on in the year, I teach a section called ‘journalists and the law’, which is more or less a collection of issues other than defamation and privacy that affect the work of the journalist in general (broadcast-specific issues come later in the course). As the focus shifts to pre-publication work (with D&P doing most of the heavy lifting for post-publication spats), the recent interest in investigative journalism provides a useful way to look at the moral/ethical/practical/legal discussion of how far the journalist should go to get a story. So for the seminar on this topic, as well as reviewing the plethora of reports on ‘phone hacking’ et al, I also ask students to look up and criticise any decision of the Press Complaints Commission under clause 10 of the Editors’ Code (the asterisk means that there may be public interest exceptions to the clause)
10 *Clandestine devices and subterfuge
i) The press must not seek to obtain or publish material acquired by using hidden cameras or clandestine listening devices; or by intercepting private or mobile telephone calls, messages or emails; or by the unauthorised removal of documents or photographs; or by accessing digitally-held private information without consent.
ii) Engaging in misrepresentation or subterfuge, including by agents or intermediaries, can generally be justified only in the public interest and then only when the material cannot be obtained by other means.
I like this clause because it weaves together things that are (reasonably) obviously illegal, things that are dubious, and things that are very likely not. The decisions also bring up the lovely newspaper history of the ‘our reporter made his excuses and left’ type of subterfuge. But it’s not the highest-profile bit of the code and the decisions were often quite inconsequential. However, for next year’s iteration, we finally have a Big Case under clause 10 to talk about…that’s the complaint of the Liberal Democrats against the Daily Telegraph, published on 10 May 2011. Not only was the original story a Big Story (the various admissions made by Vince Cable when, as Jeremy Hunt it it with a nod to the contemporaneous Mosley decision, two young women tied him up in knots), but the finding against the Telegraph is also Big. I do think the finding is well-argued, although it could be confined to its own facts if newspapers were able to make a stronger case of ‘acting on information’ as opposed to fishing. Thinking outside of a formal analysis of the decision, it’s also Big in that it comes at an important time for self-regulation, with the PCC being able to demonstrate its willingness to protect a particular form of privacy, when the law of privacy itself is in flux and the PCC criticised by some for its performance regarding phone hacking.
(I held off on this until after the students referred to sat their exam, which they did on (spooky music Friday the 13th…)