More news from the world, please
Whatever you think of the tabloid editor who bugged Princes Charles and William, the fact is reporters must sometimes break the law.
Journalists sometimes break the law in pursuit of a good story. They take risks. Sometimes it’s worth it, and sometimes it isn’t.
I’m not talking only about whether you’re likely to get caught – as Clive Goodman, the 48-year old royal editor of the British tabloid the News of the World, was this week, when he admitted at the Old Bailey in London to tapping into the mobile phones of the Prince of Wales and Prince William for nearly two years. Sometimes the more important question is not ‘what’s the law on this?’, but ‘is the story worth breaking the law for?’.
As the Duke of Wellington once proclaimed, the spirit of journalists should be ‘publish and be damned!’ However, the ‘damned’ bit might include being questioned or sometimes arrested by the police – the price you pay as a journalist when you take risks.
Journalists in Britain get arrested and pulled in for questioning all the time. This year an ITN journalist was arrested by police suspecting theft after statements from the official inquiry into the shooting of Jean Charles de Menezes at Stockwell tube were leaked. In a high-profile case, the police questioned Dawn Alford, a journalist for the Mirror, in 1997. She had bought drugs, undercover, from William Straw, then foreign secretary Jack Straw’s son. It was quite a shock at the time, I remember. Not the fact that a young kid knew where to get drugs, but the fact of the police questioning of Ms Alford – undercover journalists have been doing drugs stories for years.
Some laws are worth breaking in pursuit of a story about the law itself being wrong. Indeed, this is a fine tradition in investigative and campaigning journalism. These days, unfortunately, such stories seem designed to call for a beefing up of certain rules and laws, rather than their abolition – hence all those investigations into supposedly lax airport and Buckingham Palace security, or revelations of public sector employees who may have uttered something racist or sexist.
Perhaps I will be done for incitement to hatred of the law for saying that journalists should break the rules sometimes. But to be clear: I’m not saying hacks are above the law. Any journalist who commits a crime should face the penalties if they are caught, just like anybody else. And of course some things should be illegal, such as breaking and entering in to people’s mobile phone messaging systems. Otherwise we would have no privacy whatsoever.
But journalists should still break the law if it’s worth it. What if one discovered that Britain was about to launch a nuclear war on China? Who would seriously think to himself: ‘No, I broke the law on the interception of communications in this story, so forget it!’
Journalists often appear to be getting away with law-breaking. But in fact there are good reasons why journalists (as opposed to businessmen or teachers) have a particular defence in law. One is the ‘open-justice principle.’ The idea that every defendant has a right to a ‘public hearing’ is a long-held legal tradition and is now enshrined in Article 6 on the right to a fair trial in the European Convention on Human Rights. As Jeremy Bentham, the eighteenth-century English legal and social reformer, put it: ‘Publicity is the very soul of justice…. It keeps the judge himself…under trial.’
Another reason is the ‘public interest defence’ in relation to confidentiality. The court can rule that the public interest in publishing confidential information outweighs the public interest in keeping the confidence.
And some criminal laws can only be used in criminal courts by the Attorney General or Director of Public Prosecutions. These are laws that affect the media, including official secrets, the prevention of terrorism, reporting restrictions, contempt of court and obscenity. Sometimes the Attorney will refuse to prosecute journalists even if judges are calling for a prosecution, as he did when various newspapers published details in contempt of court during the arrest of Peter Sutcliffe, the ‘Yorkshire Ripper’ in 1981. Dozens of editors would have ended up in the dock. But it’s not a done deal. Journalists still have to think: ‘Will the Attorney General prosecute if I do this or not?’
For journalists, breaking the law is a means to an end – the end being, hopefully, a bloody good story. But who decides whether the end justifies the means? Reaction to the Clive Goodman case has implied that gossip about the royals is not a worthy public interest. Or that penalties for those who obtain information illegally should be strengthened as if that would help deter snooping journalists. In the end, whether or not one should break the law is a personal decision made by the journalist. After all, it is they who face a prison sentence, fine and criminal record, not anyone else.
Plenty of journalists have access to personal health records and British Telecom phone statements because they’ve been given leaked information. The Information Commissioner has the names of over 300 journalists who were found on the books of a private detective in Hampshire. Some of them no doubt actually paid for personal information about people and some of them must have assumed, surely, that the material may have been obtained somewhat illegally. But even when journalists know that information has been gathered by breaking the law, it doesn’t mean they will automatically publish. For example, in 1996 Piers Morgan famously received an advanced, leaked copy of the Conservatives’ budget but he sent it back. The story became not what’s going to be in the Budget but, ‘Shock! The Budget was leaked to a newspaper!’
The spirit of journalism is to be questioning and daring. The last thing we want to conclude from the Clive Goodman case is that journalists should take fewer risks. We need more news from the world, not less!
Tessa Mayes is a journalist and author. She has worked on investigations and undercover for The Sunday Times, BBC, Channel 4, Five and Sky News.