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Right to report: how good journalism is at risk of being stifled

   

The Times, February 19, 2012

Jon Ungoed-Thomas

On Friday lunchtime Rupert Murdoch dined with his son Lachlan in his private office on the 10th floor of News International’s headquarters in east London. His jacket was off and he was planning a fightback.

His thoughts were on The Sun newspaper, which has long been a cornerstone of his media empire. Six days previously, some of its most senior journalists had been arrested in dawn raids over alleged payments to public officials. The furore that had engulfed the News of the World seemed to threaten another paper.

Staff at The Sun were angry at colleagues being arrested without the chance to defend their actions. They were keen for answers from their boss.

In a typically bold stroke, Murdoch announced in an email that he would soon launch a new paper, The Sun on Sunday (a move that even Labour leader Ed Miliband, a critic of News International, said was “fine”). Murdoch also said journalists at The Sun who had been arrested and suspended could return to work. They were innocent until proven guilty.

After his meal, he went down to The Sun’s ninth-floor newsroom, accompanied by Lachlan, who was in jeans and a shirt. As he toured the office, his visceral love of newspapers — and particularly The Sun — shone through. To the journalists it was a welcome vote of confidence. “I wish I could work out Hermes [the newspaper’s computer system], so I could help,” he told one journalist.

Another said: “It was like the old days at Wapping. He wanted to get stuck in.”

Nevertheless, Murdoch made it clear that illegal activities would not be tolerated by News Corporation, which owns News International, the company that runs The Sun, The Times and The Sunday Times. He said that “every piece of evidence” uncovered by a special committee now trawling through News International emails, payments and expenses would be turned over to police.

He warned that journalists who had paid public officials could not be protected. And, by implication, nor could their sources. Journalists, in short, are not above the law. However, the phone-hacking scandal and subsequent events have now thrown up a dilemma between the demands of legality and the pursuit of proper journalistic endeavour.

News Corporation wants to co-operate fully with what is now a huge police investigation after previously being accused of presiding over a cover-up over phone-hacking. However, in providing police with evidence, it may expose journalists’ confidential sources and deter future whistleblowers.

It is a dilemma that raises questions beyond The Sun. Some of the biggest stories of recent years — from the exposure of MPs’ expenses to the disclosure of US embassy cables — were supplied by sources alleged to have been acting unlawfully.

Other stories have been obtained by reporters who have broken the law, but have argued that they did so in the public interest. The implications of the present police actions are worrying for those who believe the press has an important role to play in holding the powerful to account.

Should sources be protected at any cost? Where does legitimate investigation in the public interest stop and criminal behaviour begin?

When it was revealed last July that the News of the World had targeted the phone of the murdered schoolgirl Milly Dowler, journalists at The Sun say they were as shocked at the appalling intrusion as the public were. They say they were fairly relaxed about any inquiries into their own newsroom practices.

The newspaper, however, now faces a different issue. In common with some other tabloid newspapers, it routinely pays for stories — and even advertises the fact in its own pages. These payments soon attracted the attention of the management and standards committee (MSC), a special body set up by News Corporation to investigate its British newspaper operations after the phone-hacking scandal erupted.

The MSC is chaired by Lord Grabiner, the Labour peer and QC. A team of commercial lawyers from the firm Linklaters have been scouring emails and other internal documents for possible unlawful behaviour.

Will Lewis, a former editor of The Daily Telegraph, and Simon Greenberg, former director of corporate affairs at News International, also sit on the committee. The two executives are said to dine at their desks on organic beetroot juice and quails’ eggs. A team of 20 police officers is reported to work in the same offices, submitting requests for documents of particular interest.

It is alleged that some payments made by staff at The Sun were to public officials in breach of anti-corruption laws.

One MSC source told Reuters: “It involves regular cash payments totalling tens of thousands of pounds a year for several years to public officials, some of whom were effectively on retainers to provide information. In totality it involves a six-figure sum.”

The documents detailing payments to public officials were passed to the Metropolitan police, prompting a series of raids a week ago. Five journalists were arrested and their homes were searched by up to 10 police officers. Floorboards were taken up and children’s bedrooms searched. A police officer, a member of the armed forces and a Ministry of Defence employee were also arrested and subsequently released on bail.

There was a sombre mood among reporters at The Sun as they turned up for work on Monday. “There were quite a few empty chairs and it was very hard,” one reporter said. “It was felt they had suffered unfairly because the company was trying to cleanse itself and make up for the wrongs of the past. The mood was one of anger and shock. Reporters were also terrified that they were going to be next.”

Journalists say they were given meagre reassurances — leaflets for a counselling service were handed out. In an article on Monday, Trevor Kavanagh, the newspaper’s political commentator, claimed The Sun was the victim of a witch-hunt and accused the police operation of being disproportionate. It was, he said, the biggest investigation the country has ever seen. The police say they are only doing their duty. Though 169 officers are involved — a significant number — there have been bigger police investigations. One into the deaths of Holly Wells and Jessica Chapman in 2002, for example, involved 426 officers and staff.

Kavanagh’s complaints found little sympathy among News International’s critics. Chris Bryant, the Labour MP, who was a victim of phone hacking, said it was a “bit rich” for The Sun to complain about early-morning raids when it had never questioned similar tactics in other inquiries.

“People have had a long warning about this,” Bryant said. “It was March 11, 2003, when I asked Rebekah Brooks and Andy Coulson [both former News International tabloid editors appearing at a parliamentary inquiry] whether they paid the police for information. Brooks said they did and Coulson said they would do it within the law. But you cannot pay officers for stories within the law.”

Others were more concerned about the impact that revealing such payments — and thus the identities of confidential sources — would have on the willingness of future sources to disclose important information. Geoffrey Robertson, QC, cited a European Court of Human Rights ruling that stated: “Protection of journalist sources is one of the basic conditions for press freedom.”

Mark Stephens, another leading media lawyer, said: “The practical reality is that payment for information has been routine in the tabloid media. Are we going to prosecute every policeman and every journalist who received or made those payments? What I think we should do is accept there has been wrongdoing, accept the ground rules have changed and, as quickly as possible, get the lawyers and police out of the newsrooms.”

Stephens’s views are unlikely to find favour with MPs furious they were misled over the allegations of unlawful behaviour at the News of the World — or even with News Corporation, which wants to ensure its newspapers get a clean bill of health.

The MSC says it has handed over documents where a public official has been given payments in breach of the Prevention of Corruption Act 1906. It is not clear if the committee considers, before handing over evidence, whether any investigation or resulting article was in the public interest.

One of the highest-profile prosecutions of a newspaper using the Prevention of Corruption Act was against The Observer newspaper in 1986. It had made a £1,500 payment to a senior Ministry of Defence official who had given the newspaper confidential information. The paper was acquitted by an Old Bailey jury — even though the 1906 law does not allow the defendant to claim that they were acting in the public interest.

Donald Trelford, former editor of The Observer, said: “The story was about a torpedo programme and it was failing — but the officials involved wanted to keep it quiet. We paid expenses for the source to come to London. We didn’t actually give up the source, but the police found out through their own methods.”

Murdoch has now assigned Gerson Zweifach, News Corporation general counsel, to the MSC. Zweifach is a specialist in US first amendment cases and freedom of the press.

The issue is also regarded as important by the House of Lords, which last week published a select committee report on the subject. It described responsible investigative journalism as “a vital constituent of the UK’s system of democratic governance and accountability” and as a “force for good”.

Among examples it cited were the News of the World’s investigation into corrupt Pakistani cricketers, The Guardian’s exposé of phone hacking, and a Sun investigation into an HIV-positive security guard who had knowingly infected six women.

The committee concluded that journalists must act with integrity, but heard evidence that at times laws may be broken in the public interest. It noted, for example, that The Sun broke the law when it investigated a magistrates’ court official suspected of accepting bribes to remove offences from driving licences. The newspaper confirmed the story by offering the official a bribe. The official was subsequently jailed last year.

Many might see such a story as in the public interest — yet the current law on bribery offers journalists no public interest defence. In contrast, the Data Protection Act does.

The Lords report concludes that investigative journalism is suffering from “inconsistencies and lack of clarity in the law”. It recommends that Keir Starmer, the director of public prosecutions, should draw up new guidelines outlining when journalists should be taken to court if they commit offences in the course of their work.

Events at The Sun, and continuing police inquiries, add to the need for such measures, so that investigative reporting in all forms of media is not stifled. As one Sun reporter said yesterday: “Everyone is the newsroom is now worried about getting that early-morning knock on the door.”





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