INVESTIGATIVE JOURNALISM

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 journalism.

It is seen as glam and more worthwhile than ‘ordinary journalism’. What’s the difference.

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 agenda.

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)

http://www.lawsch.uga.edu/academics/profiles/dwilkes_more/his9_jaccuse.html

(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

http://www.innocenceproject.org/

EXPOSING CORRUPTION – PEOPLE’S TRIBUNES

Veronica Guerin – health warning, be careful when doing investigative journalism in a country where the cops work for the drug dealers.

http://uk.youtube.com/watch?v=QIbC6dRcdww

EXPOSING POLITICAL MANIPULATION – THE FOURTH ESTATE

 Journalist as hero – Watergate (the –GATE suffix). Homework – go to see All the president’s men.

http://uk.youtube.com/watch?v=2PNW2HBxW38&feature=related

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.

http://img.dailymail.co.uk/i/pix/2008/02_04/paperDM2502_468x433.jpg

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 and rivals.
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 (38)

INVESTIGATION OF CELEB PRIVATE LIFE – FAR LESS PROTECTED

 Thus ‘investigative 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 prurience.
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 matter.
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 Fake Sheik

http://www.independent.co.uk/news/media/the-fake-sheikh-and-his-greatest-hits-505691.html

 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 of witnesses.
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.

http://en.wikipedia.org/wiki/Ben_Bradle

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 martyr’

SUBTERFUGE

Normally you must ALWAYS clearly identify that you are a reporter and that anything said to you COULD be published.

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.

HEAVY INVESTIGATIVE STUFF

Infiltration (eg Gunther Wal lraff) http://www.guenter-wallraff.com/ of Bild – he’s the German Fake Shiek

Journalistic infiltration of far right, far left

Perfectly legitimate, so long on matters of public interest, and no entrapment.

The Secret Policeman (BBC) - http://news.bbc.co.uk/1/hi/magazine/3210614.stm

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 –

http://www.lorraine.co.uk/covertcapturevehicle.php

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, etc.

That’s it for now – next topic the very wonderful and completely beautiful Freedom of Information Act.

Lastly – a very good organisation and possible starting point for invetigatory work Transparency International

http://www.transparency.org/

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