The “Telegraph” sting operation directed at the Business Secretary Vince Cable and other Liberal Democrat ministers once again focuses attention on the vital issue of confidentiality and the public interest. Two “Telegraph” reporters, posing as concerned constituents, drew Mr Cable into a number of indiscrete statements about the Conservatives, the coalition and Rupert Murdoch which they secretly tape recorded and which have now been disclosed to the world.
A partial recording of Mr Cable’s comments is available on the Telegraph website. The “Telegraph” originally ran an article under the headline “Vince Cable; ‘I could bring the government down if I’m pushed’”. The first words of the article make the position clear
“Vince Cable has privately threatened to “bring the Government down” if he is “pushed too far”’ (our emphasis)
This first article dealt with Mr Cable’s “private” thoughts about his coalition colleagues and the political difficulties facing the government. The BBC then revealed that the Telegraph were told by him during a surgery that he had “declared war on Rupert Murdoch” and indicated that he would seek to block the BSkyB deal.
Conversations between an MP and his constituents are plainly confidential. Mr Cable himself made the point in an exclusive interview with his local newspaper, the Richmond and Twickenham Times
‘Thousands… of constituents have been to see me, often on very difficult and highly confidential issues which have been respected by me and by them. ’Then somebody who isn’t a constituent falsifies their name and address, and comes in with a hidden microphone. It completely undermines the whole basis on which you operate as a local MP.’
The question therefore arises as to the basis on which it can be proper for the “Telegraph” to record and then publish such conversations. Was this breach of the “privacy” of the relationship between MP and constituent justified in the public interest in this case?
Former Guardian editor Peter Preston argued that the “Telegraph’s tactics with Vince Cable stretched the public interest defence too far”. He was joined in this view by a number of other commentators including John Lloyd in the Financial Times who suggested that
“Both journalism and the public have a choice to make: between encouraging more such revelations by whatever means, or concluding that, beyond a certain point, journalism as invasive of confidentiality as it has shown itself in the past year is destructive of good governance”.
Former Liberal Democrat MP David Howarth argued that the journalists may have committed an offence under the section 2 of the Fraud Act 2006.
In a thoughtful piece on his blog, Roy Greenslade considered the arguments put forward on both sides, concluding
“on balance (and balance and/or proportionality are crucial criteria when assessing what is right or not in this area), the paper can justify what it did …
The more people know about their elected representatives, the better. The more people know the truth, the better. Indeed, the more that people know about anything and everything, the better. Isn’t that what journalism is all about?”
There are considerable difficulties with this conclusion.
The first point concerns the basis on which the “Telegraph” embarked on this exercise in “journalistic subterfuge”. We have previously pointed out that, in the United States, such conduct would be regarded as a serious breach of journalistic ethics. In England the position is less clear cut. The “Telegraph” journalists are (as a number of commentators have pointed out) subject to clause 10 of the PCC Code which provides
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.
This is subject to an exception in the “public interest” but the clause covers the obtaining of material as well as its publication. It is difficult to see what public interest justification was available at the time when the “Telegraph” journalists went into Mr Cable’s constituency office with their hidden tape recorder posing as his constituents. At that stage they certainly had no idea that he was going to make injudicious remarks about Mr Murdoch and, contrary to the apparent suggestion of some commentators, the fact that this information came out later cannot justify the operation itself.
On the presently available material it seems that the “Telegraph” was simply engaged in a “fishing expedition” – hoping that Mr Cable could be drawn into some injudicious remark which it could then publish. In other words, there is a strong argument that there was a breach of clause 10 of the Code. It appears that a number of members of the public have complained to the PCC on this basis. Strictly speaking their complaints should succeeed. Nevertheless, we do not hold out much hope of this being the result.
If “journalistic stings” are acceptable at all there is a strong argument that they should only be used where something like the three conditions in the OFCOM Code relating to surreptitious filming are fulfilled
- there is prima facie evidence of a story in the public interest; and
- there are reasonable grounds to suspect that further material evidence could be obtained; and
- it is necessary to the credibility and authenticity of the [story]
None of these grounds were present in this case. It is difficult to see how the operation itself can be justified as being “in the public interest”. Mr Cable would have an arguable claim for breach of confidence in respect of recording of his conversations – whether or not they were subsequently published by the newspaper.
Secondly, there is the question of the public interest in publication of the contents of Mr Cable’s conversations. It is important to bear in mind the nature of the “confidential relationship” which is involved. The relationship between an MP and a constituent is one which should attract a high degree of protection – where the free flow of information, without fear of public disclosure, is strongly in the public interest. On this basis, there is a strong argument that a clear and specific public interest in publication is required to overcome the public interest in preserving the confidentiality of the relationship.
It is difficult to discern a public interest of this kind in relation to the “political revelations” in the first “Telegraph” article (which, presumably, were that ones that the newspaper considered to be the most important). There is a strong argument that the exposure of differences between public and private utterances cannot, of itself, provide a proper justification for breach of confidence in this kind of case. It is obvious that politicians and other public figures cannot always be entirely candid in their public utterances. Total transparency of private discourse would make the practice of politics (and journalism) impossible. In human rights language the Article 8 rights of individuals require them to have a “private sphere” where they can freely discuss and express their views without fear of public disclosure.
The position in relation to the “war on Murdoch” is less clear cut. Mr Cable’s remarks on this issue did cast doubt on his impartiality in relation to the Murdoch/BSkyB decision. This was something that could properly be disclosed to News International whose own interests were directly affected. It is less clear, however, why the information needed to be disclosed to the public generally. The strength of the public interest in preserving the confidence in communications between MPs and constituents is such that it could be argued that disclosure should be strictly confined to those having a proper interest in the transaction in question. There is a proper public interest in deterring other newspapers from carrying out future “fishing expeditions” of this kind which the law could promote by a finding that publication of the results to the general public was illegitimate even if some, low level, “iniquity”, was disclosed.
In practice, the legal dimension to this case is academic. It is highly improbable that any of these issues will ever be tested in the courts. Mr Cable is not going to sue the “Telegraph” for breach of confidence. The newspaper has its scoop and – as John Lloyd argues – “good governance” has suffered further damage. Only a decisive media regulator could intervene to draw the line that the public interest requires – and to make it clear that the “Telegraph” was on the wrong side of it. The chances of the PCC taking on this role are, regrettably, very small indeed.