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Will press reform strangle British investigative journalism?

Strident calls for tighter media regulation have followed the News of the World hacking scandal, many from the Commons. But reform must not restrict genuine investigate journalism in the public interest
Iain Overton
1 August 2011

As a profession, journalists aren’t held in high esteem at the best of times, but the recent and ongoing flurry of stories about badly behaved journalists, and those willing to do deals with them, has dented the whole profession severely.

Politicians – still bruised by the ‘invasion of privacy’ that was the MP expenses scandals – seem quite happy now to put the boot in. 

Enter Jack Straw, former Home Secretary. Mr Straw recently outlined in the Times newspaper how a new regulator could restore faith without hindering investigative journalism. First, he argued there was a strong case for a new civil law that would address infringement of privacy.  Second, he addressed the question of how standards should be enforced away from the courts.  He dismissed the existing Press Complaints Commissionas ‘self-serving’.  His ideas, however, were half-formed and – at times – themselves self-serving.

For instance, he acknowledged that journalists have been concerned for some time that judges have used the Human Rights Act to extend privacy laws by the back door.  But then he wrote that editors ‘were fully aware of [the Act's] implications from the start’. This is unfair and nobody is in a better position than Mr Straw to realise this.

When he was Home Secretary, Straw was in charge of drafting the Human Rights Bill.  This Bill saw the European Convention on Human Rights incorporated into UK law.  At the time there was a concern that Jack Straw might be opening up journalism to privacy suits, as a right to privacy was covered by the European Convention.

At the time, though, Straw placated these fears by saying the government would provide for the future protection of the freedom of the press. Journalists were given precise assurances the power of the press would not be curtailed. In fact, Jack Straw stressed that procedural safeguards were needed, so individuals could not take out an injunction if an accurate story was going to be printed about them.

But some feel strongly that the recent rash of super-injunctions doled out by the courts to defend the private lives of celebrities show these safeguards didn’t work or were never put in place.

Jack Straw forgets this, however and instead carries on in his article to address the issue of privacy versus the public good. ‘Where exactly the line is drawn has to depend on circumstances, but all public figures have private lives that they are entitled to protect,’ he writes. The crux here is the point ‘depends on circumstances’.  This is a debate that is music to the ears of any media lawyer.  And therein lies the problem.

A letter from a major media legal firm claiming that their client’s privacy was invaded could cost the person who ultimately has to pay the bill thousands of pounds.  Even if the journalist facts are right, imagine a news organisation getting letters day in and day out from lawyers whose client, a rich businessman, is arguing that by looking at his unpublished finances the journalists are violating his human rights to privacy.

There might come a point when faced with a legal bill for £50,000 if they lose the case, but pay nothing if the investigation just doesn’t get published, editors might decide it isn’t worth it and back down.  The truth would be the victim here.

This isn’t a theoretical argument.  The Bureau of Investigative Journalism, of which I am the editor, recently did a story about two Mid Staffordshire NHS surgeons, Mr R Hutchinson and Mr Ravikumar.  These surgeons had been criticised over deaths at then Britain’s worst hospital and yet were still carrying out operations – without patients knowing about their record.

The paper we were placing the story with backed off running the piece when they got a legal letter from Berrymans Lace Mawer LLP.   We had got hold of a damning but unpublished review of the surgeons’ failures by the Royal College of Surgeons. The lawyers argued that this was ‘plainly private information’.

Finally, the Sunday Mirror had the chutzpah to run the story.  But you can imagine what might have happened had there been tougher privacy laws in place.  The story would have died a death, like those patients on those surgeons' tables.

At the end of the day newspaper lawyers will be forced to weigh up the issue of profit versus impact. A wealthy individual who isn’t a celebrity (and as such someone pretty irrelevant to sales) but sends lots of legal letters poses a question to an editor: is it worth it? Given the current squeeze most media companies find themselves in funding investigative journalism, let alone defending it in court, it is pretty clear the answer will be: no. Privacy will be protected but true stories in the public interest are in danger of being strangled at birth by legal letters. 

So are our political classes engaging with these uncomfortable truths?  No.  Instead, political representatives of all hues are jumping on the bandwagon to attack journalists. Reading Hansard it seems not one MP defends the press when it comes to reform.

On the July 13 Straw asked the Conservative Prime Minister to ‘acknowledge that some measures may have to be imposed by statute so that there is a stronger system of self-regulation’ of the press.

David Cameron’s response?

‘The right hon. Gentleman speaks some very wise words.’

The knives are clearly out.  The PM recently said the Press Complaints Commission is ‘ineffective’, ‘lacking in rigour’ and ‘lacks public confidence’. Deputy PM Nick Clegg has called it ‘a busted flush’.  And Labour leader Ed Miliband has dismissed it as a ‘toothless poodle’.

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And the House of Lords is hardly providing balance. In a recent debate, Lord Imbert told the House of Lords: “In this country, we are fortunate that we have a police service where integrity, determination and honesty are the order of the day, and if any police officers do not contribute to that, they should look for some other job. I was going to suggest that perhaps they should go into journalism.”

Interestingly, he had also just said: 'I have spoken recently to Sir Paul Stephenson, the present Commissioner of the Metropolitan Police who in my view is a man of the highest integrity.'  A few days later Sir Stephenson resigned after it was reported the Met hired a former News of the World executive and Stephenson accepted a £12,000 'freebie' stay ata luxury spa.

At the moment, it seems that the final word of what reform will happen lies with Lord Justice Leveson.  He has been given the task by David Cameron of heading a review of the phone hacking scandal and what can be done about it.  But will Lord Leveson be any different from the politicians?  Or will he be able to hear the other side of the argument, at least?

Of course, nobody is suggesting that nothing be done about people who hack into Milly Dowler’s phone or do the sort of thing the News of the World got up to. Nobody worth listening to is in doubt the Press Complaints Commission needs radical reform.  But the carrion call for an ‘independent’ regulator is just another word for a statutory form of regulation. This would be a huge danger to press freedom.

Also remember one important thing.  Something has already been done.  The News of the World was shut down.  Editors have been arrested.  And ex-News of the World journalists will find it hard to get work.

Jack Straw dismisses all of this.  He claims that ‘self-regulation is self-serving’.  But the press did self-regulate – investigative journalism revealed the wrong-doings and consequences did happen.

This should be remembered before any unnecessary and prohibitive laws and regulations are created.

Iain Overton is Editor of The Bureau of Investigative Journalism.

This article is an edited version of a piece published in the Huffington Post.

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