He outlined four ‘backstops’ that were available to journalists news-gathering and reporting ‘in the public interest’. There were, he said, ‘a number of hoops through which a journalist would jump or not jump, as he might prefer, which could cover the situation’.
Sometimes, but not always, a statute can specifically provide for a defence. For instance, under the Data Protection Act of 1998 there is a specific defence in section 55 which says ‘in the particular circumstances the obtaining, disclosing or procuring was justified as being in the public interest’.
Secondly there are the guidelines for prosecutors which Leveson says he ‘encouraged’ the Director of Public Prosecutions (DPP), Keir Starmer QC, to set out. These suggest journalists should not be charged when ‘the public interest served by the conduct in question outweighs the overall criminality’. The guidelines offer what the DPP called ‘examples of conduct … capable of serving the public interest’.
The third Leveson ‘backstop’ is the British jury system, which in the case of the senior civil servant Clive Ponting acquitted him of charges under the Official Secrets Act even though he admitted to leaking key documents after the Falklands War.
‘Finally,’ said Leveson, ‘there is, I hope, at the end of the line, a sensible judge who would take a view that even if it is a strict breach of the law, and even if there isn’t a public interest defence, then this is not a very egregious problem.’
Which just leaves the small problem of defining what exactly is in the ‘public interest’.
The Guardian’s investigations editor, David Leigh, was asked at Leveson about another journalist’s statement that the public interest is what the public is interested in. He called that ‘an absurd proposition’. He preferred a quote from Lord Northcliffe that ‘news is something that somebody wants to suppress. All the rest is advertising.’ That, he said, was ‘a starting point’.
The problem of converting the concept of ‘public interest’ into the terminology of statute and regulation is best illustrated by the dispute about one line in the Press Complaints Commission’s Editors’ Code of Practice: ‘There is a public interest in freedom of expression itself.’
John Lloyd, a contributing editor for the Financial Times and director of journalism at the Reuters Institute for the Study of Journalism at the University of Oxford, is not a fan of this sentence. He has called it ‘an absurd claim when left at that’.
On the other hand, the editor of The Guardian, Alan Rusbridger, who has often been a critic of the PCC itself, has written, ‘I’m one of those who think the PCC’s definition of the “public interest” is actually rather good.’
There have been some new attempts to define the public interest in more precise terms. Professor Steven Barnett offered one to the Leveson Inquiry:
There is a clear public interest in:
Exposing or detecting crime, incompetence, injustice or significant anti-social behaviour among private or public officials in positions of responsibility;
Protecting the public from potential danger;
Preventing the public from being misled by erroneous statements or by the hypocrisy of those attempting to create a false image for potential material gain;
Revealing information which fulfils a democratic role in advancing a better understanding of issues that are of importance to a significant portion of the public, or that assists the public in making important decisions in public life.
The search for the perfect definition of the public interest goes on.
But, helpfully, in addition to new guidelines and draft definitions, we now have a case where a news organisation argued a public interest defence for hacking to both the Crown Prosecution Service and the broadcasting regulator. The news organisation is, by coincidence, also a part of a Murdoch-controlled media enterprise, BSkyB. The man Sky News hacked was the so-called ‘canoe-man’ who paddled off to sea one day and, it appeared at the time, never came back.
In March 2002, John Darwin from County Durham was reported missing in his canoe in the North Sea. He was presumed dead and his wife Anne collected more than £500,000 in life insurance pay-outs. In fact he was hiding in their home. He had even allowed their two sons to think he was dead.
In July 2008 John and Anne Darwin were both sentenced to six years in prison. Sky News transmitted a report about ‘John and Anne Darwin’s masterplan’, quoting from emails that the ‘canoe-man’ had written to his wife and to a lawyer.
Four years later, John Ryley, head of Sky News, issued a press release which said, ‘On two occasions, we have authorised a journalist to access the email of individuals suspected of criminal activity… We stand by these actions as editorially justified and in the public interest.’741
When John Ryley appeared before the Leveson Inquiry the Lord Justice himself immediately joined in the questioning. Firstly, about the law.
Lord Justice Leveson: What you were doing wasn’t merely invading somebody’s privacy; it was breaching the criminal law.
Ryley: It was.
Then about regulation.
Lord Justice Leveson: Well, where does the Ofcom Broadcasting Code give any authority to a breach of the criminal law?
Ryley: It doesn’t.
But Sky News and its staff were subsequently not proceeded against by the UK’s public prosecutors and broadcasting regulator.
In March 2013 the Crown Prosecution Service announced:
The evidence indicates that the public interest served by the conduct in question outweighs the potential overall criminality… In reaching this decision, we took into account that the emails were accessed with a view to showing that a criminal offence had been committed.742
In July 2013 Ofcom decided that Sky News had not breached the Broadcasting Code by ‘obtaining and subsequently broadcasting material accessed improperly by gaining unauthorised access to the email accounts’ because ‘the broadcaster’s right to freedom of expression, including the freedom to receive and impart information and ideas without interference, in the exceptional circumstances of this case, outweighed Mr and Mrs Darwin’s expectation of privacy’. However it also noted that ‘BSkyB’s conduct is at the boundaries of what is appropriate’.743
The hacking affair and the Leveson Inquiry had brought – among many other things – new guidelines, a new awareness that the media couldn’t just opt in and out of observing the law and the ‘canoe-man’ case. One other benefit may turn out to have an even wider and longer-lasting impact.
‘Transparency’ is arguably the most overused word in the English language but that doesn’t mean the value of the concept is completely diminished. It doesn’t come much more transparent than an editor being interrogated live on television in front of a senior judge by a top barrister. At the Leveson Inquiry public hearings, the live television coverage and the simultaneous commentary on social media made a powerful combination for holding journalists to account in the same way as they, rightly, hold others to account.
There were moments when editors and reporters sat, heads down, as they struggled to remember why and how certain deeds were done. On Twitter, colleagues, competitors and citizens congratulated, criticised and challenged them. John Ryley of Sky News looked uncomfortable being questioned by Leveson about the ‘canoe-man’ but his openness probably helped his case with the CPS and Ofcom.
My own conclusion is that nothing will ever be the same again after Leveson and that real journalism has nothing to fear from the transparency and accountability it represented.
I am not advocating regular ‘trial by television’ of journalists. It wouldn’t be right and it wouldn’t be needed. I believe that the outside possibility of being questioned in public, the possible chance of the disclosure of internal emails (as reinforced by the disclosures to both the Hutton Inquiry and the Pollard review for the BBC of the Savile affair), and the likelihood of peer review on social media have changed behaviours and will continue to do so. Those who believe they can meet the public interest should have nothing t
o fear.
So I commend one new ‘line’ and I call it the ‘Leigh line’ after the investigations editor of The Guardian, David Leigh, who said at a Leveson hearing:
I think I would say a journalist ought to be prepared to face up to the consequences of what they’ve done. I mean, if I do something that I think is OK in the public interest, I have to be prepared to take the consequences.
APPENDIX
What is an ambitious young journalist to conclude from these stories of what their predecessors got up to in the news business?
I feel we owe it to would-be journalists, some of whom I help to teach, to at least offer them some specific guidance based on our research.
Jeff Hulbert and I have distilled some of the lessons learned into a ‘Purvis–Hulbert List’ – a checklist that a journalist can refer to at significant moments.
First ask yourself: is there a law, an industry code or in-house guideline covering what you are about to do? You can find out most of the rules by reading them yourself and by asking an expert in the newsroom. The best advice is to follow the rules, but if you feel you would be justified in breaking them check with your editors, who in turn will consult their legal advisers. They can help decide if your organisation would have a public interest defence that they would be confident to put forward under public scrutiny, potentially before a jury.
There are ten other situations where we would advise a pause for thought:
If you are about to attack your rivals in public, have you controlled your competitive instincts and ensured that any allegations you make will be seen to be fair when the full facts are made public?
If you are relying on a whistle-blower, have you got all the facts in your story right so that you respect their motives and help protect their identity?
If you are getting a story from intelligence sources, where does the balance of benefit lie? They will get planted propaganda, what exactly will you get?
If you are giving information to intelligence sources, is there a good reason why you are doing this if the story wasn’t interesting enough for you to put in the public domain by publishing or broadcasting it yourself?
If you are self-censoring a story, can you justify this because it will facilitate an eventual greater truth?
If you are giving evidence in a court case, have you thought through what you think it is right and wrong to reveal? If you are taking sides, are you being honest about it?
If you’ve done a defensible deal with a source to omit a key fact, are you sure your report won’t end up misleading people?
If your editors and sub-editors have changed your copy substantially, can you still stand behind it?
If you are a broadcast journalist subject to the due impartiality rules, is your knowledge of the subject enough for you to offer a ‘professional judgement’ without it being a ‘personal view’?
If the answer to these ten questions is ‘yes’, then go ahead and if necessary cross somebody’s line; you’ll be ready. As David Leigh put it, ‘If I do something that I think is OK in the public interest, I have to be prepared to take the consequences.’
ENDNOTES
1 Fitzroy Maclean, Eastern Approaches (London: Penguin, 1991), p. 311
2 Ed Vulliamy, The War is Dead, Long Live the War: Bosnia: The Reckoning (London: Bodley Head, 2012), p. xxvii
3 Mark Curtis, Secret Affairs: Britain’s Collusion with Radical Islam, 2nd edn (London: Serpent’s Tail, 2012)
4 For a view that the images were not sanitised see Jean Seaton, Carnage and the Media (London: Allen Lane, 2005), Chapter 6. Some of the incidents initially attributed to Bosnian Serbs were later found to have been perpetrated by Bosnian Muslims.
5 See Brendan Simms, Unfinest Hour (London: Penguin, 2002)
6 John Burns, ‘The Media as Impartial Observers or Protagonists: Conflict Reporting or Conflict Encouragement in Former Yugoslavia’, in James Gow, Richard Paterson and Alison Preston (eds), Bosnia by Television (London: British Film Institute, 1996), p. 92
7 John Simpson, A Mad World, My Masters: Tales From a Traveller’s Life (London: Pan, 2001), p. 322
8 Roy Gutman, ‘Prisoners of Serbia’s War’, reprinted in Roy Gutman, A Witness to Genocide: The First Inside Account of the Horrors of Ethnic Cleansing in Bosnia (Shaftesbury: Element, 1993), pp. 28–33
9 Roy Gutman, ‘Like Auschwitz, Serbs Pack Muslims into Freight Cars’, reprinted in Gutman, A Witness to Genocide, pp. 36–40
10 Maggie O’Kane, ‘Muslims’ Nightmare under the Long Hot Yugoslav Sun’, The Guardian, 29 July 1992; and Roy Gutman interview, ‘All Things Considered’, National Public Radio, 2 August 1992; see also: Roy Gutman, A Witness to Genocide
11 Roy Gutman, ‘Death Camps, Survivors Tell of Captivity, Mass Slaughters in Bosnia’, reprinted in Roy Gutman, A Witness to Genocide, pp. 44–49
12 See Ed Vulliamy, ‘Concentration Camps’, in Roy Gutman and David Rieff (eds), Crimes of War: What the Public Should Know (New York: W. W. Norton & Co., 1999), p. 102
13 Bill Nasson, The Boer War: The Struggle for South Africa (London: History Press, 2011), pp. 241–246; Thomas Pakenham, The Boer War (London: Abacus, 1991), pp. 507, 509–510, 517 and 572. Up to 155,000 (111,000 whites and 44,000 blacks) had been held in the camps; ‘official’ estimates of the death rate varied between 18,000 and 28,000.
14 See Primo Levi, If This is a Man (London: Abacus, 1995), for his experience in one of the labour camps in the Auschwitz complex. Auschwitz comprised three main camps, including Auschwitz-Birkenau, and forty-five satellite camps; see also Hannah Arendt, Eichmann in Jerusalem (London: Penguin, 1994).
15 Gitta Sereny, Into That Darkness: From Mercy Killing to Mass Murder, new edn (London: Pimlico, 1995)
16 There is a picture of the ‘restored’ Treblinka site on which a farmhouse had been built at the end of 1943 and in which a Ukrainian farmer named Strebel was housed. If questioned he was expected to claim that his family had lived there for a long time. The photograph is reproduced in Sereny, Into That Darkness, between pages 192 and 193; for the closure and disguising of the camp, see pages 249–250. Sereny quotes from a report to Heinrich Himmler by the SS general in direct charge of the three camps, Odilo Globocnik. It confirmed that the same method of disguise was adopted to mask all of the Operation (Aktion) Reinhardt camps (p. 249).
17 See Martin Gilbert, The Holocaust (London: Collins, 1986); I. C. B. Dear and M. R. D. Foot, The Oxford Companion to the Second World War (Oxford: Oxford University Press, 1995); Sereny, Into That Darkness; Rudolf Hoess, Commandant of Auschwitz (London: Phoenix, 2000), (especially Primo Levi’s introduction); Yisrael Gutman and Michael Berenbaum (eds), Anatomy of the Auschwitz Death Camp (Bloomington: Indiana University Press, 1998) (in particular Part II); and Hanna Arendt, Eichmann in Jerusalem, p. 1
18 Transcript, Independent Television News, Penny Marshall and Ian Williams v. Informinc (LM) Ltd, Michael Hume and Helene Guldberg, (Sue Inglish) day 5 am, p. 40, lines 1–5
19 Nik Gowing interview with Radovan Karadžić, Channel 4 News, 29 July 1992: http://www.itnsource.com/en/shotlist//ITN/1992/07/29/BSP290792023/?s=bosnia&st=0&pn=1
20 Ibid.
21 Transcript (Sue Inglish), day 5 am, p. 40, lines 8–12. See also: Nik Gowing, ‘Real-time TV Coverage from War: Does It Make or Break Government Policy?’, in James Gow, Richard Paterson and Alison Preston (eds), Bosnia by Television, p. 89
22 Transcript (Sue Inglish), day 5 am, p. 40, lines 14–21
23 Vulliamy, The War is Dead, Long Live the War, p. 5
24 See Vulliamy, The War is Dead, Long Live the War, p. 5
25 Transcript, day 2 pm, p. 36, lines 28–41
26 Vulliamy, The War is Dead, Long Live the War, p. 6; trial transcript, day 2 PM, p. 37, lines 6–19
27 Vulliamy, The War is Dead, Long Live the War, p. 6
28 Yigal Chazan and Foreign Staff, ‘US Confirms Camps Exist’, The Guardian, 4 August 1992, p. 6
29 Ibid.
30 Transcript, day
2 pm, p. 37, lines 49–55
31 Ed Vulliamy, ‘Shame of Camp Omarska’, The Guardian, 7 August 1992, p. 1
32 Ibid.
33 This was the notorious camp at Keraterm, which held mostly Bosniak Muslim prisoners, although some Croats were held, too. The camp was located at a former ceramic works and was the scene of beatings and executions, according to the UN Committee of Experts – see final report of the United Nations commission of experts established pursuant to security council resolution 780 (1992), S/1994/674, Annex VIII; and Ed Vulliamy, Seasons in Hell, Understanding Bosnia’s War (London: Simon and Schuster, 1994), pp. 111–112, 202–203.
34 Transcript, day 2 pm, p. 40, lines 20–25
35 Transcript, day 6 pm, p. 55, lines 34–42
36 Vulliamy, The War is Dead, Long Live the War, p. xxiv
37 Transcript, day 2 pm, p. 42, lines 23–31
38 Vulliamy, The War is Dead, Long Live the War, p. 7
39 Transcript, day 6 pm, p. 53, lines 41–44
40 Transcript, day 6 pm, p. 54, lines 15–18
41 Transcript, day 2 pm, p. 44, lines 28–31
42 Transcript, day 2 pm, pp. 44–45; Transcript, day 6 pm, p. 55, lines 34–42
43 Transcript, day 2 pm, p. 44, lines 47–51
44 Transcript, day 2 pm, p. 46, lines 9–23
45 Sandra Sanchez, ‘Horror in Serbian Prison Camps’, USA Today, 7 August 1992, p. 4A
46 Paul Lewis, ‘Conflict in the Balkans: U.S. and Allies Divided Over Role of U.N. Forces’, New York Times, 9 August 1992, p. 12
47 Craig R. Whitney, ‘Conflict in the Balkans: What Price Bosnia? Atrocity Reports Make West Consider How Far It Should Go to End Violence’, New York Times, 10 August 1992, p. 8
48 Ibid.
49 Paddy Ashdown, ‘When Will You Act? The Leader of the Liberal Democrats Paddy Ashdown Sent This Letter to Mr Major on his Return from Bosnia’, The Guardian, 13 August 1992
50 Vulliamy, The War is Dead, Long Live the War, p. 6
51 Final report of the United Nations commission of experts established pursuant to security council resolution 780 (1992), S/1994/674, 27 May 1994. Annex VIII acknowledges that most camps had closed by the middle of August 1992.
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