These are rough lecture
notes and do not constitute legal advice.
See also chapter 6, Investigative
Journalism, (2nd Edition) Hugo de Burgh (ed) Routledge, 2008
This is the standard academic
textbook in use in UK journalism colleges. In addition to McNae’s
you could read this book and it would at least be wise to read the
chapters by me (chapter 6 – Investigative Journaoism and the
Law) and Chapter 7 – Freedom of Information Action (that is
the next lecture topic).
Definition of Investigative
Journalism. De Burgh says: “discover the truth and
to identify lapses from it in whatever media may be available… distinct
from apparently similar work done by police, lawyers, auditors and
regulatory bodies in that it is not limited as to target, not legally
founded and it is closely connected to publicity”
I prefer the simpler definition
of journalism that is initiated by the journalist him/herself. It is
closely related to ‘Gonzo’ journalism (HST) and performance
It is seen as glam and more
worthwhile than ‘ordinary journalism’. What’s the
Ordinary ‘news’ journalism
(a tautology for some) is just telling the news. It is very much determined
by the public agenda. Key concept of the News Agenda- following what
is going on in court, in local/national government, football matches,
scheduled events, AGMs of companies and civic organisations – the ‘normal’ news
Investigation / IJ is where
journalists go off the agenda and decide the agenda for themselves.
Unlike De Burgh definition this could include subject matter on a lightweight
or TV or entertainment-led agenda (such as ‘investigating’ the
contents of Madonna’s dustbin). The classic ‘investigations’ however
are on heavy subjects – Harry Evans and the Insight Team (toxic
medicine peddled by big drugs companies; Ray Fitzwalter and World in
Action (un-framing of political dissidents as terrorists – Who
Bombed Birmingham). A lot of the serious IJ these days is financial – exposing
ENRON for example, fraud and money laundering in Italy, the Jameel
case and Saudi links to terrorism, etc.
MISCARRIAGE OF JUSTICE
The classic ‘off agenda’ is
miscarriage of justice – where people framed and go to jail.
The legal system has pronounced so (eg in legal thinking about defamation
the person in a criminal and should be punished and that’s an
end to it). But what if the criminal justice system is corrupt – then
the last hope is the journalists – concept of The Fourth Estate
(co-incidently the name of my publisher at the moment).
Emile Zola and J’Accuse – Dreyfus
case (good topic for a dissertation)
(Emile Zola by the way a great
stylist for long form journalistic writing – eg Germinal, dealing
with gritty social realism – serial killers, prostitution, coal
miners, etc. All v.good stuff. Also by the way he invested photojournalism – so
a general candidate for greatest journo ever.
Golden Age of ITV/ Granada
TV – World in Action – Who Bombed Birmingham? – the
classic miscarriage of justice case…
Students doing something worthwhile –
The Innocence Project
EXPOSING CORRUPTION – PEOPLE’S
Veronica Guerin – health
warning, be careful when doing investigative journalism in a country
where the cops work for the drug dealers.
EXPOSING POLITICAL MANIPULATION – THE
Journalist as hero – Watergate
(the –GATE suffix). Homework – go to see All the president’s
Legendary power of the press – Watergate
inspired generation of journalists.
The evidence gap : civil
and criminal standards of proof
The Daily Mail’s famous
branding of five young men suspected of killing the London teenager
Stephen Lawrence as “Murderers” is a highly illustrative
example of the way in which journalism can operate in the ‘gap’ between
the standards of proof in the civil and criminal law.
After the collapse of the trial the Daily Mail printed front
page pictures of the five youths beneath the block headline “MURDERERS” and
the prominent strapline: “The Mail accuses these men of killing.
If we are wrong, let them sue.” Had the accused been facing trial
the paper would have been guilty of the serious crime of contempt of
court. But since it was now extremely unlikely that the accused would
be facing trial in front of a jury in the near future the only legal
risk was an action for libel.
Mail if, as seemed
likely they lost. It was doubtless a very effective piece of
INVESTIGATIVE journalism (because it was not on the AGENDA and when
against that agenda in fact, though it was criticised as a “cynical
stunt” and “trial by media” by the Daily Mail’s critics
The programme’s reporter,
John Ware, defended his methods and commented: “Getting people out
of jail who have been wrongly convicted has always been recognised as a
journalistic pursuit very much in the public interest. By the same token,
helping to lock up people who commit crimes as heinous as the Omagh bombing”
OMAGH BOMBING –
The BBC Panorama programme’s investigation into the Omagh bombing
is another illustrative example of investigative journalists using persuasive
and accurate, but legally inadmissible evidence, gathered by the police
(and in this case by the intelligence services) The official investigation
was largely based on then innovative methods of electronic tracking of
patterns of mobile phone traffic. This evidence highly persuasive, but
open to challenge as circumstantial and co-incidental
Absence of Malice : Common
Law Qualified Privilege
In recent years the gap between
standards of evidence required for criminal conviction on the one hand
and the standard needed to defend an investigative report has widened
considerably, and very much in favour of the serious and responsible
investigative journalist, who works without malice.
SEE NOTES ON REYNOLD’S
DEFENCE AND COMMON LAW QP elsewhere on Media Law Web.
The key factor is ABSENCE
OF MALICE – never investigate or go off the agenda where
you are personally involved, and never do it to exact vengence (Pizza
hut case, other student examples over the years – disguising
personal contacts with the subjects of investigations.
The Press after Reynolds: “Bloodhound
as well as Watchdog”
In the same ruling Lord Nicholls
set out a “ten-point test” of responsible journalism which
would, he believed, ought to enjoy the full protection of the courts.
The test covers many points that would be considered good practice
by journalists and which are covered by points in various voluntary
codes of conduct. As such it should be followed as a legally sanctioned
guide to the practice of investigative journalism. The ruling, including
the test, is highly significant, has been frequently cited in major
libel cases since 2001. The advent of the 10 point test and the ‘Reynolds
defence’ has been described by lawyers specialising in libel
defence as ‘a new dawn for press freedom’.
You will be examined on the ‘Ten
Point Test’ – it is almost like a legally sanctioned blue-print
for legally supported investigative journalism.
The Public Interest
and Public Concern
Central to the ten-point test
is the idea of the public good and “the public interest”,
and how this is to be balanced against the right of the individuals
under investigation to maintain their reputation, as well as their
HRA right to privacy (36). If it can be shown that there is a high
level of public interest in making the allegations, and that they are
free from malice, then there is a strong QP right to publish them (and
perhaps, indeed, even a duty to publish), even if the allegations turn
out to untrue, or are incapable of proof (37).
Some litigation experts, following
Lord Nicholls’s example, now prefer the term ‘of public
concern’, since ‘public interest’ (as defined in
the various codes of professional ethics) may become confused with ‘that
which interests the public’, which may be a very different thing
INVESTIGATION OF CELEB PRIVATE
LIFE – FAR LESS PROTECTED
journalism’ which has as its focus purely private concerns such
as the state of health or interesting lifestyles of public figures
may not enjoy protection even if the methods used to obtain and check
information conform to the ten point test and are otherwise of the
highest quality .
So in the Max Mosley case
the NoW emphasised the neoNazi aspect, to show ‘public concern’.
It was not gratuitous (key word) public interest in the sense of public
American publishers have done much better in British courts, notably
the Wall Street Journal’s employment of the Reynolds defence
in the Jameel libel case. It may be that they have higher standards.
The fact that the Journal employs fact-checkers and can show
it has routine management systems which set high hurdles whereby reporters
have to prove the truth of defamatory allegations before publication
weighed heavily in favour of the paper in court. The case concerned a
piece of investigative journalism discussing ways in which Saudi Arabian
financial institutions based in the USA might be funding terrorist groups.
“QUALITY JOURNALISM” is a MATTER or METHODS and not about subject
The appeal judge in Jameel built on Reynolds, emphasising that QP was
available to investigative journalists so long as they could show two
things were present in their investigations – firstly the “quality” and
type of journalistic techniques that they themselves as well as the publication
or broadcaster for whom they were working routinely use; and secondly
that stories dealt with matter of public concern. Journalism which can
be shown to be of ‘high quality’ (in consideration of the
methods employed by the journalist and publisher) and is also about
a socially important issue (in consideration of content of the story)
will enjoy a high degree of QP protection.
The News of the World would argue it does a lot of Reynold’s protected
quality journalism including even controversial methods such a SUBTERFUGE – The
The libel lawyer David Price notes that QP defence is essential in stories
dealing with corruption in totalitarian countries, where definitive proof may
be impossible to obtain because of official censorship, or severe intimidation
Conversely journalists or publications with a track record of getting
things wrong, of having complaints upheld against them, or who can be
shown to be reckless or slapdash in any particular case would be less
likely to gain QP protection.
Hence our ‘fatal errors’ system
here at Winchester, introduced specifically as a response to Jameel.
As one leading libel
defence lawyer advised journalists at a conference: “Always question
reliability of your source. Log each step you take in an investigation.
Get independent corroboration, and - above all - put the allegations
to the accused.”
The principles set out
in Ben Bradlee’s Ethics and Standards present tough
challenges for journalists, first amongst them the ability to doubt
the truth of their own stories. But following these ideal will tend
to produce good quality and legally defensible journalism.
Protection of sources
Protection of confidential
sources of information is perhaps the key professional duty of the
journalist. As one editor recently put it: “The fundamental ethical
principle of journalism is that we have a moral imperative to give
a guarantee of anonymity to genuine confidential sources providing
bona fide information.”
The Journalists’ Code
of Conduct says that you must protect confidential sources – but
there may be a price to pay. If you give an undertaking you are required
by the code to honour that even I suppose under torture, and you need
to take the identity of the source to the grave.
Refusal by journalists to
reveal sources of confidential information can lead to prosecution
for contempt of court if the journalist defies a court order to reveal
those sources. The classic case involves the technology journalist
Bill Goodwin (see McNae)
More recently the Attorney
General threatened the deputy news editor of the Manchester Evening
News, Steve Panter, with prosecution after he had refused to reveal
protected sources who had helped him name suspects behind the 1996
IRA bombing of central Manchester. The case was dropped amid comment
that it would have been politically unwise to turn Panter into an ‘instant
Normally you must ALWAYS clearly
identify that you are a reporter and that anything said to you COULD
The convention about ‘ON
THE RECORD’ and ‘OFF THE RECORD’ – off the
record is really not much use, though it it sometimes useful to understand
asomething and get a background briefing. You have no choice but to
honour an ‘off record’ undertaking, because of the general
obligation in the first place to protect sources. Beyond this the person
is likely to deny that they gave you the information. They certainly
are unlikely to appear in court as a witness.
TAPE RECORDERS and SECRET
RECORDING (not allowed in radio/TV without specific prior permission
from regulatory bodies or BBC editorial policy) and DISCREET recording – where
you record on the phone for example for your own records.
On taping (including on video)
the rules are stark – if there’s CONSENT then pretty much
everything said could be quoted or broadcast. The consent must
be EXPLICIT. If so (eg on a Dictaphone in an interview face to face
or on the phone ‘do you mind if I tape this’. If consent
is explicit then it is as good as a signed statement.
You must not selectively quote
and in a dispute (legal or before a regulatory body) the other person
and third parties will have the right to hear the whole tape.
If there’s no consent
then you can’t use it at all as evidence, but you can quote it – it
just means your shorthand is not very good. It is the same as that.
The main difference of course in in court, where you are not allowed
to use a tape recorder and you must use shorthand.
Infiltration (eg Gunther Wal
lraff) http://www.guenter-wallraff.com/ of
Bild – he’s the German Fake Shiek
of far right, far left
Perfectly legitimate, so long
on matters of public interest, and no entrapment.
The Secret Policeman (BBC)
Very good clean, clear example…
Electronic equipment sometimes
used to gather evidence, but now very, very difficult with section
8 or HRA and spread of confidentiality law and property rights and
trespass law. You would need very expensive and clear legal advice
before using any of this stuff these days –
Electronic surveillance by
private persons (and journalists) was made illegal by the 1997 Criminal
Law Act, and the prohibition was strengthened by the Regulation of
Investigatory Powers Act (RIPA), 2000. There was concern at the time
of the RIPA’s passage that it would constrain certain types of
legitimate journalistic investigation. January 2007 saw the
first prosecution of an investigate journalist using RIPA - News
of the World investigative reporter Clive Goodman was sentenced
to four months in jail after being discovered using an electronic ‘bug’ to
record telephone calls made by the British royal princes. A further
concern for journalists is additional powers given to the police by
RIPA to demand access to records of phone calls made by journalists,
including investigative journalists, where they believe these may be
of use in prosecuting criminals.
Law on stalking can be used. Privacy
laws, and trespass are all more difficult now. There’s a balance
against the spread of QP, and the strengthtening of privacy and trespass,
That’s it for now – next
topic the very wonderful and completely beautiful Freedom of Information
Lastly – a very good
organisation and possible starting point for invetigatory work Transparency
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