While the media should not be above the law, it is important to recognise the need for a general public interest defence.
As the Leveson inquiry begins to hear its first evidence this week, the media will take a battering. Hearing the details of the hacking of Milly Dowler’s phone will bring home just how unnecessary it was.
But Lord Justice Leveson’s remit is broad and it represents a unique opportunity to assess the whole of the media’s relationship with the law – not just one section or organisation.
Leveson will undoubtedly emphasise that the press is not above the law. But it is equally important to recognise that the media does require special protection from the law in order to safeguard genuine investigative journalism. Despite the plethora of criminal offences that apply to the media, there is no general public interest defence. The need for such a defence is not diminished by the fact that most of the conduct Leveson will examine does not come within striking distance of a public interest defence.
Voicemail and email hacking are serious crimes which resulted in immediate prison sentences for Mulcaire and Goodman. There is no public interest defence for these offences – no matter how small the intrusion or how large the wrongdoing exposed. Obviously hacking the phone of a victim of the 7 July 2005 London suicide bombings cannot conceivably engage the public interest. But what about hacking a corporate email in order to reveal a sophisticated cover-up gravely affecting public health?
Even David Leigh – an investigative journalist if ever there was one – has admitted phone hacking in order to try to obtain details of corruption. But if he were prosecuted he would have no defence at all. Whether we like it or not, we need the media to expose the truth – after all, the Leveson inquiry’s existence is largely down to the Guardian’s dogged investigative journalism rather than any diligent police work. And yet the police can relatively easily obtain authorisation for hacking (even of lawyers’ communications) whereas the media are subject to a law without exception.
Blagging to get private details can amount to a range of serious fraud offences, none of which includes any public interest defence. Obviously publishing the health details of a politician’s child is most unlikely to engage the public interest. But what about exposing a minister’s secret links to an arms manufacturer by means of a small white lie? Somewhat paradoxically, the only criminal offence that is apt to apply to the media and that does include a public interest defence is the relatively minor Data Protection Act offence of obtaining unauthorised access to personal data. At present, the maximum penalty is a fine but a genuine belief that obtaining the data was in the public interest is a defence.
Payment to police officers or other public officials with a view to the improper performance of their duties may amount to a range of corruption offences – none of which carries a public interest defence. So if the Daily Telegraph had made any payment, however small, to a civil servant to leak details of the MPs’ expenses scandal, that would have been a criminal offence with no public interest defence, despite the magnitude of the wrongdoing exposed. And the only carve-out in the new Bribery Act is one which exempts the intelligence services from bribery offences. So when the Sun apparently paid a sum of money in order to reveal conduct which led to the first Bribery Act conviction, might it thereby have committed a criminal offence?
Even if there is no money involved, encouraging leaks from public officials may amount to incitement to misconduct in public office – an offence which still carries life imprisonment. It has been used against journalists, such as Sally Murrer. Although she managed to demonstrate the investigative techniques used against her were excessive and thereby halted her prosecution, she had no overarching public interest defence. It was only when the offence was deployed against Damian Green and the police entered parliament’s sanctum that the criminal prosecution service decided to provide welcome guidance about using such a serious offence against journalists. But prosecutorial guidance falls a long way short of a general public interest defence.
Even the Official Secrets Acts may be used against the press – by means of the controversial offence of onward disclosure of material whose publication impedes the detection or prosecution of crime. The offence does not require proof of resulting damage and there is no general public interest defence to it.
There is a statutory public interest defence for whistleblowers in employment law. So-called “protected disclosures” are those assessed to be in the public interest. There are guiding factors in determining this: was the disclosure made in good faith and not for personal gain? How serious is the wrongdoing being exposed? Was it reasonable to tell the world at large? Specific examples are provided: disclosures of criminal offences, breaches of legal obligations and miscarriages of justice. And the Press Complaints Commission’s code of conduct also provides a workable definition of public interest, which includes “preventing the public from being misled”.
These could provide the starting point for a general public interest defence for the media to relevant criminal offences, especially those aimed at protecting privacy. That would have the dual effect of ensuring that the media is still subject to the full force of the criminal law, while also safeguarding genuine investigative journalism. Leveson must strive to ensure that lessons are learned about the scale of media wrongdoing under examination while also recognising that one size will not fit all when the whole of the media is at stake.
Alex Bailin QC is a barrister at Matrix Chambers
This article was originally published on “Guardian Law” and is reproduced with permission and thanks.
This is a fundamentally important idea, and one that should be pursued.
I have been working on something equivalent, and hope to set out some technical options and to address at least the more obvious objections that might be raised in a piece to be published on the LSE British Politics and Policy blog in the coming weeks. The starting point would be a generic public interest privilege similar to s.10 of the CoCAct 1981, open to any person (ie not only journalists) who could satisfy the conditions for availability.
Clearly, people at the Guardian have been doing similar – note Alan Rusbridger’s musings before various Ctte’s on the work of David Omand, and the analogy that he has drawn with the principle underpinning the Reynolds defence.
Moreover, Stephen Abell and the PCC consulted newspapers earlier this year on their protocols for confirming whether newsgathering activities were in the public interest – on this see Greenslade from late August.
Another important development in this respect has been the current Lords Communications Ctte’s inquiry on the future of investigative journalism. I was originally sceptical of the need for this inquiry. Watching its sessions, however, its clear that the Ctte has been motivated by a perception that the investigative journalism baby may be at risk during the Leveson media regulation wash-up and its aftermath. The idea floated here by Alex Bailin should be one thing that that Ctte contemplates seriously during its deliberations, alongside some of the other very important positive suggestions made by some excellent witnesses (most notably Martin Moore and Iain Overton).