Britain's press needs a strong public interest defence
01 Jun 2012

marta-cooperThe Leveson Inquiry should not forget the need to protect British journalism, says Marta Cooper

This is a watershed year for media freedom in the UK, as Lord Justice Leveson’s Inquiry into press standards reaches its conclusion.

In some of the clearest hints on his likely recommendations on changes to press regulation — due this autumn — Leveson told Monday’s witness, former prime minister Tony Blair, that any successor to the Press Complaints Commission (PCC) would need to be independent of the government and the industry.

He added that there was a need to “have a mechanism that means that sanctions work”.

The judge said any system must employ experts, and command both press and public respect, as well as provide redress to those who cannot afford the luxury of litigation. On the issue of notifying subjects before a potentially damaging story about them is printed — a cause championed by ex-Formula 1 boss Max Mosley — Leveson chose his words carefully, suggesting there had to be “some way of drawing a line”.

This is not the first time he has floated such ideas. The judge has repeatedly reminded watchers that he is merely thinking aloud, stressing he has no desire to imperil free speech, as he told education secretary Michael Gove during their duel in court 73 on Tuesday.

Yet what gets lost in this Inquiry, which seems continually to unearth new conundrums outside of its remit, is the need to protect the press that Leveson has been enlisted to sort out.

There is a need for a clearer legal definition of public interest, as demonstrated by this week’s decision by the Crown Prosecution Service to take no action against Guardian reporter Amelia Hill, who was investigated over leaks from the Metropolitan police’s phone-hacking investigation.

While the CPS found there was a realistic prospect of section 55 of the Data Protection Act having been breached, it said the public interest “outweighed the overall criminality alleged” involved in publishing the information received from a police officer. There was also no evidence the police officer was paid any money for the information.

This measured decision was the responsible and the right one: it protects investigative reporting and the freedom of the fourth estate to do its job.

But unlike section 55 of the DPA, other criminal offences that that this country’s media may fall foul of — such as the Official Secrets Act, Regulation of Investigatory Powers Act 2000 and Computer Misuse Act — do not offer the protection of a public interest defence.

Imagine a journalist hacked into a minister’s email in order to expose corruption. Regardless of what was exposed, or how small the intrusion, there would be no public interest defence in the Computer Misuse Act for that reporter if he or she were to be prosecuted.

We need journalists to expose the truth, and in pursuit of this there may be occasions where reporters break the law. The Daily Telegraph’s expose of MPs’ expenses, using information that was paid for, is a clear example of the ends justifying the means. A stronger public interest defence would mean journalists could be reassured that in such cases they would have a strong defence, and not feel deterred from doing good journalism.

None of this is to suggest the press is above the law. On the contrary: if journalists were protected by such a defence — one that could be weighed up by the courts — the line between responsible, investigative journalism and acts of egregious wrongdoing would be clearer.

Rather than resorting to statute to solve what has already gone wrong, a public interest test could also improve our current system of self-regulation, as City University’s George Brock has argued here (£). By showing they deserved the protection of a public interest defence in their actions, newsrooms would be able to be more transparent about the editorial standards employed. “Trivial, sloppy or bad journalism which can’t claim a public interest justification gets no protection; better journalism at least has that line of defence available,” says Brock. This seems like a fair deal and a way to create an incentive for journalists to rely less on the so-called dark arts for their stories.

Despite the relentless criticism piled on the Press Complaints Commission over the course of the Inquiry, its definition of public interest is comprehensive. It includes but is not confined to detecting or exposing crime or serious impropriety; protecting public health and safety; and preventing the public from being misled by an action or statement of an individual or organisation. It states that there is a public interest in freedom of expression itself, and also protects the paramount interest of a child in cases involving children under 16. It provides a useful starting block from which to develop a fuller public interest test.

The British press is already hemmed in by the existing law of the land, as Inquiry witnesses Private Eye editor Ian Hislop and former Times journalist Gove pointed out. The question is how to better enforce it and in so doing improve editorial governance, encourage transparency and protect reporters, the vast majority of whom were appalled by the wrongdoing at the News of the World that triggered the Inquiry in the first place.

This country is home to some brilliant papers, vibrant and loud voices who are unafraid of getting their hands dirty by investigating corruption, scandal and wrongdoing. It might be tempting to look at the Inquiry as a chance to rein in the feral beasts, but let’s not forget that it was an act of brave and relentless journalism that exposed an act of putrid journalism. The illegality exposed is being dealt with, and rightly so.

Lord Justice Leveson has said he does not want to risk his Inquiry ending up as a footnote in history, and a bargain must certainly be struck between balancing our free press and a regulator with teeth. But a bigger risk is missing this chance to protect the journalism — rough and ready, noisy, tireless — that makes our press freedom worth fighting for.

Marta Cooper is an editorial researcher at Index, where she leads coverage of the Leveson Inquiry. She tweets at @martaruco

Follow Index on Censorship’s coverage of the Leveson Inquiry on Twitter – @IndexLeveson

4 responses to “Britain’s press needs a strong public interest defence”

  1. […] for public interest journalism in regulation as well as through consistent application of public interest defences in laws affecting the media.RegulationThe press must accept that the breach of trust engendered by […]

  2. […] argued in the joint Alternative Libel Project.It is also essential Leveson pushes for a stronger public interest defence, a concept at the heart of investigative journalism, in the range of criminal offences that apply […]

  3. […] public health or security risks, or tracking potentially criminal behaviour, that they have a public interest defence. At the moment, some UK laws allow such a defence, others don’t. Journalists are operating in an […]

  4. Grumpy Scot says:

    The PCC Editor’s Code definitions are indeed quite good, but until the avoiding exclusions are redefined to the point where the less scrupulous can’t drive tanks 10 abreast through them, such that we get the sort of abominations that emanate regularly from the sewer at the tacky end of your garden, eg,

    you can hardly expect most people to be unduly receptive to your pleas for any form of protected status, however much that really is merited by the more responsible elements our your industry

    I use ‘industry’ deliberately, because until you can develop a broad ranging professionalism that applies to all those who profess to be ‘journalists’, which matches the technical and ethical standards set for, and enforced upon members of other 21st professions, and which curtails the activities of the Hill-Billy Neanderthal hacks that are out there in Red Top land, journalism in the UK doesn’t universally merit the descriptor of ‘professional’