by Brian Cathcart
The case of Guardian reporter Amelia Hill is only the latest to show up the unsatisfactory state of the law when it comes to journalism and the public interest.
On the face of it the story is pretty straightforward. Hill was suspected of breaking the law when she received information from a police officer. She was questioned by detectives and a file was sent to the Crown Prosecution Service, which has now ruled that prosecuting her would not be in the public interest.
Why would that be unsatisfactory? Because although the outcome may be fair, the process actually inhibits and deters good journalism.
Even though the CPS found in favour of Hill and the Guardian on the public interest, the process took ten months and the reporter was under threat of prosecution and possible conviction all of that time. Like other cases before it, this sends a message to the world of journalism which is not good for society because it puts people off embarking on important investigations.
If you were an editor or reporter pursuing a worthwhile story about, say, corruption, but you faced risks like those taken by Hill and the Guardian you might well be daunted not only by the prospect of facing trial (even if you were reasonably confident of winning) but also by a year of controversy, uncertainty and stress, not to mention legal bills, while you waited for the DPP’s decision.
You might reasonably decide that it wasn’t worth it, and society would be the worse for that because the corruption might never be exposed. There are good grounds to believe that editors make this kind of judgement every week.
Something relatively simple can be done about this, and it does not involve (as some suggest) placing journalists above the law or giving them preferential treatment. It means changing the law so that journalists and others have a clearer understanding of where they stand from the outset, rather than having to wait for the CPS to rule.
Some laws already provide explicit protection for people (again, not just journalists) who may break them as part of investigations that are in the public interest. One example is the Data Protection Act, though the protections it offers are pretty week. Section 55 of the Act states that people will not be prosecuted for some breaches where they are necessary in preventing or detecting crime, or where ‘in the particular circumstances the obtaining, disclosing or procuring was justified as being in the public interest’.
This is halfway to being a good solution for journalism where data protection law is concerned, because editors and reporters have a better idea from the outset what the legal risks are. They are much more likely to engage in an investigation because they know (in principle) that if they can show satisfactory evidence that they acted in the public interest they risk nothing worse than one visit from the police.
It is only halfway to a good solution because there still is not enough clarity about the definition of the public interest. This is not nearly as difficult as some suggest. (But then if you were a professional privacy invader and you knew that a clear definition would never work in your favour you would want to muddy those waters, wouldn’t you?)
The PCC, the BBC and Ofcom all have definitions. The DPP has just published one. There are others, and there is case law. In practice there is little disagreement on what is meant by the public interest but journalism would certainly benefit from a more generally agreed formula because, again, editors and reporters embarking on investigations would have a better idea of where they stood. It would also help promote public understanding of the issue.
Importantly, the Data Protection Act is the exception rather than the rule. It is one of relatively few laws to make public interest protection explicit, so Hacked Off is pressing for other relevant laws to be amended to include clauses providing that protection.
One recent case highlights the need for such a clause in the Bribery Act. Last year reporters from the Sun broke this law to expose a corrupt magistrates’ court official in Redbridge, East London. It learned that the official was accepting bribes to doctor a court database and paid him £500 to prove its case. On the face of it, the paper was liable to prosecution.
Another well-known case relates to the important Regulation of Investigatory Powers Act of 2000 (RIPA) and the Misuse of Computers Act of 1990. Sky News may have broken the letter of both laws in its investigation of the so-called ‘Canoe Man‘, John Darwin, and again, though Sky insists it acted in the public interest, no public interest defence exists in either law.
Sky and the Sun are, like the Guardian, big organisations with substantial legal resources, so when they stuck their necks out they had measured the risks. The vast majority of journalism, however, is carried out by people in smaller organisations and in much less secure positions, and they are surely entitled to more explicit protection.
This is why Hacked Off is working, with others, for changes to the law. Our provisional list of offences and civil torts which do not have explicit public interest defences but probably should include offences under the Bribery Act, RIPA and the Computer Misuse Act, and also the Official Secrets Act and the laws on misconduct in public office and defamation. We also see a case for change in relation to the Harassment Act, the Data Protection Act and the Copyright Designs and Patent Act.
We read a lot about bad journalism these days, and with good reason. It makes it all the more important that as a society we should do what we can to nurture and protect good journalism. Better public interest defences are one way of doing that, and now is the time to introduce them.