Lord Triesman and the ethics of clandestine recording
As the Mail on Sunday continues to take criticism for reporting the taped conversations of the FA chief, Brian Cathcart asks if it's ever right to secretly record private conversations
21 May 10

As the Mail on Sunday continues to take criticism for reporting the taped conversations of the FA chief, Brian Cathcart asks if it’s ever right to secretly record private conversations

“This phone call is being recorded for quality assurance purposes.” It is common courtesy today, if you are recording a conversation of any kind, to tell the people you are talking to that they are on tape.

And so it is in journalism. If you are taping an interview, you normally put your recorder in plain view and check that the subject does not mind. Normally, but not always. Any journalistic code of practice worth its salt will say that there are times when it is ethically acceptable to record a conversation covertly.

When are those times? The question is in the air after the resignation of the Football Association chairman, Lord Triesman, who was secretly recorded by a dinner companion, Melissa Jacobs, saying some embarrassing things about football and politics. Ms Jacobs, who has been advised by Max Clifford, then handed the recordings to the Mail on Sunday, which gleefully spread them over its front page.

She is not a journalist, so she answers only to her own conscience or her bank balance. The Mail on Sunday is at least honour-bound to justify its actions and to abide by the Press Complaints Commission’s code of conduct. The code says that the use of clandestine listening devices “can generally be justified only in the public interest”.

Ah, the public interest, a defence so abused by editors you might think it had no meaning at all. The News of the World pretended its expose of Max Mosley was in the public interest on the grounds (falsely contrived, a court found) that his activities had Nazi overtones. John Terry’s love life had to be exposed because it set a bad example to schoolboys. And back in 1992 The People ludicrously justified intruding into David Mellor’s private life by alleging, on the basis that he said he was “knackered”, that his love life left him too tired to do his ministerial job properly.

The PCC offers a definition of this elastic commodity. “The public interest includes, but is not confined to: i) Detecting or exposing crime or serious impropriety. ii) Protecting public health and safety. iii) Preventing the public from being misled by an action or statement of an individual or organisation.”

It is a valiant effort, but you do not need to be a clever lawyer to steer your coach and horses through those. What is impropriety? Are all forms of misleading culpable? Failing all else, the definition is open-ended anyway. Then again, you try defining the public interest in a way that can be generally applied: it isn’t easy.

So, was it in the public interest for the Mail on Sunday to publish clandestinely gathered material about Lord Triesman? The PCC test is in the content, and the paper can easily make the case that it was in the public interest to reveal that the head of the FA is prepared to say, even privately and even when evidently trying to impress a much younger woman, that two European countries were conspiring to fix World Cup matches.

In PCC terms, this could well amount to exposing, if not impropriety itself, at least an allegation of impropriety. It might constitute preventing the public from being misled. It might also fall within that unmeasurable undefined category of public interest.

We may not like it. We may regard the allegation as trivial. We may regard Lord Triesman as ill-used and Ms Jacobs and the newspaper as unscrupulous, but that is not the point. Codes, like rights, are by definition general, and so they sometimes protect those of whom we disapprove as well as those we like.

A more interesting and more fruitful question is how the public responds to such stories. Gary Lineker, who quit as a columnist on the Mail on Sunday over the affair, told the BBC: “If we all had conversations of a private nature with trusted friends or colleagues which we thought were in danger of being in the press, we would never say anything. Every single one of us would have said something … that would end up embarrassing us.”

He was describing the gaffe industry: seizing upon remarks which may be ill-judged or unintentional or lazy or inspired by anger or distress and treating them as if they were important. Surely most people, if they reflected, would agree with Lineker: nobody is on-message all the time and it is unreasonable to expect them to be.

This is not a matter of rules. If we try to prevent newspapers from publishing such stories we will only strangle free expression. What we can do, however, is respond reasonably.

The Mail on Sunday claimed its story had left England’s bid to host the World Cup “in chaos”. But it was never in the paper’s power to create such chaos. If the world had stopped to ask whether Lord Triesman really meant what he had said and how important it was, there might have been no story at all.

Brian Cathcart is professor of journalism at Kingston University London