Why the parable of the canoe man is important for media freedom

This is a paper I presented in October to a seminar on ‘Ethical Spaces :What Leveson Missed’ which was part of  the 10th annual conference of the Institute of Communication Ethics in London:

During Lord Justice Leveson’s long search for enough regulatory and legal clarity and certainty to reform the practices of the press without constraining the freedom of the press, I was on a rather more modest search for an editorial holy grail which had interested me for a decade- when exactly  do reporters ‘cross the line’?

Leveson’s conclusion was based –in part- on evidence given to him and –in other parts –on his own legal experience. Mine-again rather more modest- was based on something one reporter said at one of Leveson’s hearings.

Leveson was searching ,and a year on the search still continues, for the certainty of an agreed regulatory model. My own experience these past two years considering the ethical issues facing broadcast and print journalists through case studies from the 1920s to phone-hacking, tends more towards the inevitability of regulatory uncertainty.

I will explain that and then go on to say why I think there are things about Leveson that others may have missed which made it an important and worthwhile process, whether or not (and who can yet tell ) his regulatory model or a version of it is ever agreed. And my evidence for that is the parable of the canoe man which I will relate later.

My research was conducted in partnership with Jeff Hulbert, an Honorary Research Fellow at City University London. A review of our work in the Spectator said that we were ‘safe and snug in higher education’, I’m not sure those of us involved in higher education find it that ‘safe and snug’.

In my four decades in journalism I had often heard colleagues talk about ‘not crossing a line’ but where or how this line was drawn was never clear. In the introduction to ‘When Reporters Cross the Line’ I explained that by and large  British journalists are not very interested in reading rules that someone has written for them.

I quoted my conversation with one of the country’s most respected correspondents, the late Charles Wheeler, who told me that he’d never seen and never read a copy of the BBC’s editorial guidelines. His own guideline was ‘push it as far as you can but make sure you get it right’.

During my time at Ofcom, I had been effectively the Editor-in-Chief of the Broadcast Bulletin, a fortnightly list of Ofcom judgements on which broadcasters have been found to be ‘in breach’ of Ofcom broadcast regulations ,which have been investigated and found ‘not in breach’  and the cases which are declared to be ‘resolved’.

Jeff Hulbert and I decided we would not repeat that model. We would not attempt to adjudicate whether or not individual journalists crossed those uncodified lines , instead we would use a mixture of new archive research, interviews and story-telling to highlight the ethical issues .Then we would try to draw out some of the  morals of the stories.

The full title of the book is ‘When Reporters Cross the Line-the heroes, the villains, the hackers and the spies’. The subjects of the chapters range from Guy Burgess to Andrew Gilligan, from Charles Wheeler to Frederick Forsyth. We never associate a particular name with a particular category.

It wouldn’t be appropriate today to attempt to summarise their stories though the Observer did it rather well in the headline to Peter Preston’s review of the book ;

Reporter?  Secret agent? It’s hard to tell with spies like us.

From the cold war to Syria, journalists have to negotiate ethical waters far murkier than anything considered by Leveson.

Actually the thought of Guy Burgess being cross-examined by Robert Jay QC on how the ethics of how he simultaneously held the posts of BBC producer, MI5 informer and KGB spy would definitely have been worth the price of admission to the Leveson hearings.

Putting that aside, I think there are initiatives that flowed directly or indirectly from Leveson that will benefit journalism, quite apart from the debate about regulatory models.

Buried away in the transcripts of the hours of Leveson hearings is a useful tutorial. More specifically it is Leveson himself explaining how the law recognises that sometimes it is acceptable to break the law.

He outlined four ‘backstops’ that were available to journalists who were 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’.

First, 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’.

Only last week the DPP, Keir Starmer, was telling the Guardian that his guidelines will protect reporters working in the public interest.

The third Leveson ‘backstop’ was a British jury , which I remembered from the case of the senior civil servant Clive Ponting where a jury 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.’

But since Leveson , in addition to new guidelines and reminders of judicial safeguards , we have,helpfully the practical parable of the canoe man.

In March 2002, John Darwin from County Durham paddled off into the North Sea and, it appeared at the time, never came back. He was reported missing, 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.’

When John Ryley appeared before the Leveson Inquiry it is fair to say John’s demeanour was not quite so robust. Lord Justice Leveson himself joined in the questioning in a censorious tone.

Firstly, about the law.

Lord Justice Leveson: What you were doing wasn’t merely invading somebody’s privacy; it was breaching the criminal law.

John Ryley replied : 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 no action was ever taken against Sky News and its staff by either the UK’s public prosecutors or the broadcasting regulator.

In March 2013 the Crown Prosecution Service announced they would not proceed against Sky News over the hacking of the canoe man’s e-mails. A statement said:

‘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.

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’ .Ofcom accepted Sky’s public interest defence but it also cited ‘the broadcaster’s right to freedom of expression……, in the exceptional circumstances of this case, outweighed Mr and Mrs Darwin’s expectation of privacy’.

What students of the European Convention on Human Rights would call favouring Article 10 about freedom of speech over Article 8 about a right to privacy.

However Ofcom also noted that ‘BSkyB’s conduct is at the boundaries of what is appropriate’, presumably putting something of a marker down to those who might consider following Sky’s example.

Now an investigation about a crime is arguably the easiest threshold to meet for a story claiming to be in the public interest. There may be other stories ahead where the public interest is more arguable. But at least the model has been tested and it has worked. We are now more clear, if not entirely clear, when journalists can break the law and breach statutory regulations.

The hacking affair and the Leveson Inquiry have brought –among many other things –a new awareness that the media can’t just opt in and out of observing the law without some basis. 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.

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 to fear.

So I commend one new ‘line’ and I call it the ‘Leigh line’ after the former 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.’

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