Should Journalists have privileges? Part Two, Accreditation and Privileged Access – Hugh Tomlinson QC

7 12 2011

The distinction between journalist and citizen is one which is becoming increasingly blurred.  In the first part of this post I argued that despite the rise of the “citizen journalist” the law cannot sensibly extend “journalistic privileges” to everyone who is writing or investigating for possible publication.  In other words, a sub-category of those writing for publication – “accredited journalists” – should be given specific privileges to assist them in their work.

This point is not uncontroversial.  The spectre of “state licensing” of journalists hovers over the debate. The obvious democratic benefits of having a wider range of individuals analyse and write about public affairs have led some to argue that the law should not extend any privileges at all to journalists.   This argument is not sustainable and, if applied consistently would seriously damage public interest journalism.

Before considering the benefits for public interest journalism of creating a category of “accredited journalists” I want to deal with one misunderstanding of the argument being advanced.  Contrary to a comment made on the post by Andrew Scott, the contention is not that a general “law breaking privilege” in the public interest would be too burdensome for society.   There is no reason in principle why public interest defences to criminal charges involving information gathering should not be available to anyone.  The person who “blags” some personal information could be a journalist researching a public interest story, an NGO researcher trying to discover some corporate wrongdoing or an individual citizen trying to get to the bottom of misconduct by a public official.  There is no reason why each of these individuals should not, in appropriate circumstances, have a “public interest” defence.  It will obviously be more difficult for the individual citizen to make the defence out but there is no reason in principle why it should not be available.

I would, however, add one qualification. Information gathering is the lifeblood of journalism.  There is an argument that “accredited journalists” should have the privilege of a “presumption” that their activities are in the public interest.   If a responsible journalist is discovered spying on someone or trying to blag information then in the absence of evidence that he or she is abusing their position they might have a “presumptive” public interest defence.  In practice this is probably what happens in any event – conduct which would be suspicious when engaged in by ordinary citizens is viewed differently by enforcement agencies if it is being done by a serious journalist.

But my fundamental point does not concern “public interest defences” but rather access to information.  There are cases in which it would be in the public interest for “responsible journalists” to be given privileged access to certain kinds of information and events.  In some cases, the nature of the information or the event means that access cannot be given to everyone but there is a public interest in the information or access being given to the media.

In the first post the example was given of access to the family courts – this has been newly granted to “accredited media representatives”.   The rules granting such access are based on an assessment that there are certain types of case which “proper journalists” can be given access to but not the general public.  This might, at first blush, seem elitist and anti-democratic but it enables a category of court case to be opened up to the media which would otherwise have to be conducted in private.

Other examples of the need for “accredited media representatives” are the parliamentary lobby or the “off the record” briefings given by the police or the CPS in relation to pending prosecutions.  Confidential access to parliament or to briefings of this kind cannot be made available to everyone.  But unless there is a means of deciding who is to have a right to such access then it will be given to the “chosen few”.  Public access to information will be unduly restricted.

The current system for providing accreditation by the “UK Press Card Authority” is not satisfactory.  For example, as Damian Tambini has pointed out, it is difficult to see how leading bloggers could be successful in applying to one of the accreditation authorities for a press pass.  He goes on to say that

“When one looks down the list of ‘Gatekeepers’ control access to press passes in the UK, it becomes clear that any attempt to increase the regulation of access of accredited journalists to physical spaces or public interest defences would lead immediately to a conflict of interest. This is because it would effectively amount to a delegation to these commercially interested parties the ability to exclude their commercial rivals – including bloggers – from those defences”.

This is not be an acceptable way of granting journalistic privileges. Not only are there obvious conflicts of interest but accreditation is not tied to any enforceable code of responsibility.

The alternative which I would favour would be to tie accreditation – and thus journalistic privileges – to a willingness to submit to a voluntary regulatory regime which involved standards of responsibility and conduct.

A well thought out proposal along these lines has been put forward by Lara Fielden in her comprehensive proposal for “Regulating Trust for Journalism”.  Her “Tier 2” of regulation – ethical private media.  It involves “Independent Standards Regulation” – requirements framed by the industry but administered and enforced by a regulator recognised by statute but whose powers derive from the voluntary acceptance of its jurisdiction by members.   Media organisations, bloggers or individual journalists who signed up to this form of regulation would be “accredited” and obtain certain “journalistic privileges”. Membership might require some training and a basic examination.

Those who were signed up would have accreditation for court reporting and privileged access to confidential briefings.  They could also have the benefit of “presumptive public interest” defences in both civil and criminal proceedings.

In short, the answer to the question in the title of this post should be “yes”. But the privileges should not be granted to journalists simply because they are employed to write or because they work for a media organisation.  Neither should the privileges be granted to any “citizen journalist” who claims to be writing public interest stories.  Rather, the privileges should be made available to those who pass through a gateway policed by a voluntary independent regulatory body and sign up to an enforceable code of responsibility.  Journalistic privileges should be available to responsible journalists who have “accreditation” from this regulatory body.  This will not undermine the position of “non-accredited employed journalists” or of “citizen journalists” or bloggers but will assist and support the work of “public interest investigatory journalists”.



8 responses

7 12 2011

Doesn’t section 55 of the Data Protection Act, which would come into play in a subset of information gathering exercises, provide a public interest defence:

Subsection (1) does not apply to a person who shows— .
(a)that the obtaining, disclosing or procuring— .
(i)was necessary for the purpose of preventing or detecting crime, or .
(ii)was required or authorised by or under any enactment, by any rule of law or by the order of a court, .
(b)that he acted in the reasonable belief that he had in law the right to obtain or disclose the data or information or, as the case may be, to procure the disclosure of the information to the other person, .
(c)that he acted in the reasonable belief that he would have had the consent of the data controller if the data controller had known of the obtaining, disclosing or procuring and the circumstances of it, or .
(d)that in the particular circumstances the obtaining, disclosing or procuring was justified as being in the public interest.

7 12 2011
Cheryll Barron

I’ve been waiting eagerly for Part 2, and am not disappointed … This could be an excellent idea – provided that the qualifications are designed intelligently with the assistance of experienced investigative journalists and permit maximum flexibility.

A voluntary code of responsibility like the one you describe would put trained professionals who prefer to operate independently on more equal terms with journalists working for institutions.

Woodward and Bernstein were employed by The Washington Post, but — and this is a fact that gets surprisingly little attention — freelance journalists were responsible for the most recent big scoops about British politics. Heather Brooke broke the story about the MPs’ expenses scandal, and Nick Davies’s sleuthing exposed the horrors of tabloid phone hacking.

I would guess that hundreds of equally important ideas for reporting projects go to waste every year – because they require the support and aid of institutions (the Telegraph for Heather Brooke and Nick Davies for the Guardian). The knowledge and experience of editors at these institutions are inevitably too limited for them to act as gatekeepers. This is especially true in a world growing vastly more complex, fast. A journalist’s hunch — even of a well-informed intuition — about the importance of a trail or quest can be difficult to explain or justify in advance.

Innovations in media ownership – in the direction of ‘plurality’ – should also improve the truth and accuracy of reporting, as I’ve explained in today’s post on my own blog:
‘Co-owning media is on the horizon — and press coverage of the Leveson Inquiry shows why we need this’

7 12 2011
Cheryll Barron

Sorry, that should have been, ‘The Telegraph for Heather Brooke and The Guardian for Nick Davies’ … and ‘ A journalist’s hunch — or even well-informed intuition …’..

7 12 2011
Francis Davey

@fishnchippapers – that’s only a defence against the section 55 offence. There are a great many other offences that might impinge on a journalist, such as RIPA or Computer Misuse Act offences (for phone hacking). Some of these have no public interest defence. What I think Hugh is arguing for is the more general availability of such a defence together with a presumption in favour of accredited journalists.

8 12 2011
Can the ICO Regulate the Internet? | inforightsandwrongs

[…] uncoincidentally, I suspect, acted for the claimants in this case – in two important recent posts on the Inforrm blog). If we non-journalists are potentially subject to the DPA but lack the […]

9 12 2011
Andrew Scott

OK – apologies for putting others’ words in your mouth!!

A presumption that accredited journalists act in the public interest when committing putatively criminal acts or engaging in tortious behaviour is an interesting idea. As you say, such a thing may well already operate de facto in some circumstances (eg Ken Clarke and Keir Starmer of late re Bribery Act non-application to the Sun). But it clearly doesn’t in others, and it would be a major leap to have that idea widely accepted I think. Particularly in the context of torts where a private party will have usually suffered some injury, or in cases where some public authority has to have other aspects of the public interest in mind. In Reynolds, to avoid liability defendants are required to demonstrate that they’ve acted responsibly; in harassment law, that behaviour has been reasonable. However appealing, any move towards a de facto proof of malice standard or similar for categories of people would require significant justification in principle. It would see us move away from a focus on the circumstances of individual cases in favour of a general ‘green card’ approach.

12 12 2011
Law and Media Round Up – 12 December 2011 « Inforrm's Blog

[…] Should Journalists have privileges? Part 2 – Accreditation and Privileged Access. Hugh Tomlinson QC argues that privileges should be made available to those who pass through a gateway policed by a voluntary independent regulatory body and sign up to an enforceable code of responsibility. […]

16 12 2011
Early Resolution - » Should ethical journalists be given special privileges?

[…] baser instincts in future. But what about individual responsibility? In a set of recent posts on Inforrm, Hugh Tomlinson asks whether journalists be licensed in some way and afforded special privileges if […]

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