Analysis: Why Press Reform Could Inhibit Investigative Journalism

It will only be a matter of time before somebody writes an article saying: 'Are journalists the new bankers?'

It will only be a matter of time before somebody writes an article saying: 'Are journalists the new bankers?'

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

And 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. This week, Mr Straw 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 Commission as '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 he says 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.

In June 1998 when he was then Home Secretary, Straw confirmed that the Press Complaints Commission would be treated as a public authority under the Human Rights Bill. This Bill saw the European Convention on Human Rights incorporated into UK law. What this meant was that under the terms of that bill bodies named as public authorities may be sued for infringements of individual human rights in UK courts instead of in Brussels.

At the time there was a concern that by making the PCC such a body Jack Straw may leave that open to privacy suits, as a right to privacy is covered by the European Convention. But Jack Straw placated these fears saying the government would provide for the future protection of the freedom of the press.

Far from being 'fully aware of its implications' journalists were given precise assurances that 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. Some argue 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's article goes on to address the issues 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 wrote. 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 over £1000. Even if you as a journalist 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 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 review of the surgeons 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 the 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 are pretty irrelevant to sales) but sends lots of legal letters poses a question to an editor: is it worth it? And given the current squeeze most media companies find themselves in funding investigative journalism, let alone defending it in court, it is pretty clear that 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 one common ground politicians can find is in their mutual dislike of Fleet Street, it seems.

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 at a 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. But something has been done. The paper was shut down. The editors have been arrested. And ex-News of the World journalists will find it hard to get work.

Jack Straw dismisses all of this, it seems. 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.


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