Bureau of Investigative Journalism v Bell Pottinger: a question of standards II

Sequels are rarely as good as the first book or film, but sometimes it is hard to resist. In my first blog into the Bureau of Investigative Journalism (BIJ) sting on Bell Pottinger (BP), I used the story to show how blogging is largely unregulated, press media is regulated to a limited degree by the Editors’ Code of the PCC and then lastly that broadcast media are subject to the greatest regulation of all under Ofcom’s Broadcasting Code.

To adapt my own opening, you may have thought that experienced public relations professionals would realise that there is no such thing as impartiality in the press, but the press release of Lord Bell of Chime Communications suggests this is not the case.

I’ll follow the format of my last blog, too.

Blogs and websites

Firstly, as I said before, blogs, bloggers and their websites have little restrictions on what they do or say. So in the context of the Chime Communications press release, bloggers can be as underhand, unethical and improper as they like. Their reporting of a matter can be as impartial, not even-handed and deliberately slanted as they want.

Press media

For press media, there is little legislation above what applies to bloggers. When it comes to the increased, self-imposed regulation of the Press Complaints Commission (PCC) and its Editors’ Code, there is not much to add on impartiality. The press only have some duties concerning accuracy. Article 1 of the Code states:


i) The press must take care not to publish inaccurate, misleading  or distorted information, including pictures.

ii) A significant inaccuracy, misleading statement or distortion once recognised must be corrected, promptly and with due prominence, and – where appropriate – an apology published.

iii) The press, whilst free to be partisan, must distinguish clearly between comment, conjecture and fact.

iv) A publication must report fairly and accurately the outcome of an action for defamation to which it has been a party, unless an agreed settlement states otherwise, or an agreed statement is published.

The use of subterfuge was addressed in my last blog – I note that Chime Communications have not stated why the public interest defence does not apply to its use by BIJ for the sting. Impartiality or partisanship is the name of the game for the press, which a PR would know, surely?

Broadcast media

Lastly, there is the broadcast media. Here, fairness and impartiality is an issue, with a whole section dealing with fairness (Section 7). So perhaps in a broadcast of the BIJ story, there would have to have been some programme time devoted to a right to reply (see Section 7.11 and 7.12 of the Broadcasting Code), once the use of deception could be justified by the public interest test in the Code to permit the programme to air in the first place.

So given that the BIJ website and The Independent could be quite impartial, what is the Chime Communications press release trying to say? Sorry?

Bureau of Investigative Journalism v Bell Pottinger: a question of standards?

You may have thought that experienced public relations professionals would realise that there is no such thing as a private or “off the record” briefing, but the report last week from the Bureau of Investigative Journalism (BIJ) into the activities and practices of Bell Pottinger (BP) suggests this is not the case.

The BIJ used what is colloquially called a sting by posing as potential clients from a regime with questionable human rights and anti-corruption credentials, to reveal boasts from BP of what it could do in terms of media management and lobbying on behalf of a less desirable client, if that client showed commitment to a reform agenda. The sting included the use of hidden cameras and recording equipment, in what many consider to be tactics close to being entrapment.

The BIJ published its report, including video clips, on its website. The report was picked up by a number of press and broadcast media channels.

The story therefore provides a neat example of the difference in regulation between bloggers/websites, press media and broadcast media. This could not be more topical, as the Leveson Inquiry considers press regulation.

Blogs and websites

Firstly, blogs, bloggers and their websites have little restrictions on what they do or say. Only privacy and libel laws (together with specific legislation such as provisions concerning incitement to racial or religious hatred in the Public Order Act 1986) limit how and what is reported – it is accepted that current libel law as practiced in England and Wales may have a significant chilling effect on free speech, so that this is no trivial “only”. Assuming that there is no libel involved in the BIJ exposé as it merely faithfully reports BP’s own statements, then the question here is the methods used to get those statements. There are no specific laws against the use of surreptitious recording, if the recording does not involve interception of electronic communications within the scope of the Regulation of Investigatory Powers Act 2000 (eg hacking or phone monitoring) or unauthorised access to computers within the scope of prohibitions in the Computer Misuse Act 1990. The Data Protection Act 1998 might have relevance, but then within it is a journalism defence (section 35), which applies when the material processed is intended for any form of publication in the public domain and the publisher reasonably believes the publication is in the public interest. Although it does not say so explicitly, this publication must include blogs and websites.

A person seeking to challenge the publication could complain to the Information Commissioner, who has the power to levy monetary penalties of up to £500,000 for serious breaches of the Data Protection Act 1998, but to date there has not been a case involving a failed section 35 defence. Action in the courts is possible (but expensive), but the level of damages is low – the most publicised case involved Naomi Campbell (Campbell v Mirror Group Newspapers [2002] EWHC 499 (QB), subsequently upheld by the House of Lords [2004] UKHL 22). Although not clearly identified as such, it would seem that her data protection damages amounted to a modest £1,000, out of a total award of £3,500 damages for breach of the Data Protection Act 1998 (damages for distress under section 13) and for breach of confidentiality.

More importantly, for private individuals’ blogs, it is arguable that any processing by them would be within the domestic purposes exemption (section 36), but this does depend upon how the law develops to interpret what are “recreational purposes” within that exemption.

Press media

For press media, there is little legislation above what applies to bloggers. The difference is that there is an increased level of self-imposed regulation, under the Press Complaints Commission (PCC) and its Editors’ Code. Article 10 of the Code states:

10 Clandestine devices and subterfuge
i) The press must not seek to obtain or publish material acquired by using hidden cameras or clandestine listening devices; or by intercepting private or mobile telephone calls, messages or emails; or by the unauthorised removal of documents or photographs; or by accessing digitally-held private information without consent.
ii) Engaging in misrepresentation or subterfuge, including by agents or intermediaries, can generally be justified only in the public interest and then only when the material cannot be obtained by other means.

However, these restrictions can be disregarded in the public interest, if an editor reasonably believed prior to publication that publication or journalistic activity prior to publication was in the public interest. Note that in dealing with any complaint about use of clandestine devices and subterfuge, the PCC can take into account “the extent to which material is already in the public domain, or will become so”. Does this mean that once information obtained by subterfuge is out in the public domain, it is fair game for press media to republish it?

The real question for the Leveson Inquiry is what happens when there has been a breach of the PCC Code. It is widely suggested that the PCC is too ready to find that there is public interest. Even when it finds that there is no public interest to warrant the breach of the Code, it is arguably toothless, so that remedies for the victim are derisory.

Broadcast media

Lastly, what if the BIJ report had been broadcast on the Channel 4 Despatches programme, which appears to take some indirect flack from BP? Channel 4 is subject to the Broadcasting Code, regulated by Ofcom. Section 7 of the Broadcasting Code includes:

Deception, set-ups and ‘wind-up’ calls
7.14 Broadcasters or programme makers should not normally obtain or seek information, audio, pictures or an agreement to contribute through misrepresentation or deception. (Deception includes surreptitious filming or recording.) However:
• it may be warranted to use material obtained through misrepresentation or deception without consent if it is in the public interest and cannot reasonably be obtained by other means;
• where there is no adequate public interest justification, for example some unsolicited wind-up calls or entertainment set-ups, consent should be obtained from the individual and/or organisation concerned before the material is broadcast;
• if the individual and/or organisation is/are not identifiable in the programme then consent for broadcast will not be required;
• material involving celebrities and those in the public eye can be used without consent for broadcast, but it should not be used without a public interest justification if it is likely to result in unjustified public ridicule or personal distress. (Normally, therefore such contributions should be pre-recorded.)

So if a victim of deception complained to Ofcom, would the outcome be as weak as for the PCC?

This is where there is a marked difference between press and broadcast regulation. Whilst the actual regulations may be similar (see the above rules on deception/subterfuge), the penalties for getting it wrong as a broadcaster can be steep. Ofcom can fine up to £250,000 or 5% of a broadcaster’s qualifying annual revenue. The most recent case reported by Ofcom for breach of the fairness rule was a case involving Press TV Limited, who were fined £100,000 on 1 December 2011.


Standards in the media

After years of tenacious reporting by The Guardian, the scandal of telephone hacking and interception of communications by The News of the World has finally reached a tipping point. Yesterday the Prime Minister, in response to a question from the Leader of the Opposition in Prime Minister’s Questions, promised at least one public inquiry into the whole affair. Many commentators have already re-quoted David Mellor’s statement that the press were drinking in the last chance saloon (widely reported to be in 1989, when as Secretary of State for the Department of National Heritage, but no Hansard reference found). So what will happen?

It is more than possible that there will be a call for statutory regulation of newspapers. It is obvious that the Press Complaints Commission has been unable to act as a rigorous regulator. Self-regulation may no longer be tenable in print media.

How does this compare with broadcast media? Radio and television are subject to statutory control under the Communications Act 2003 and the Broadcasting Act 1996. Regulation on standards in programmes, sponsorship, product placement in television programmes, fairness and privacy are consequently set out in the Ofcom Broadcasting Code. In particular, there are separate sections of the Code that deal with fairness and privacy. There is a degree of precedent in the way Ofcom considers complaints about breaches of fairness and privacy. Ofcom has published guidance on procedures for dealing with fairness and privacy complaints, with all adjudications published in the Broadcasting Bulletin. Financial penalties can be imposed to a theoretical limit of 5% of relevant turnover (or “qualifying revenue”, in the terminology of the Broadcasting Act 1990). Fines have reached into the millions, for example £3,000,000 against LWT (Holdings) Limited in connection with breaches in connection with Ant & Dec’s Saturday Night Takeaway in 2008.

I suggest, therefore, that a statutory scheme already exists that could easily be extended to cover print media. All that is required is the political will.

WTF? No fine for Channel 4?

Okay, regulating content must be a Great British Nightmare, but how blatant a breach of the Broadcasting Code must there be before saying “Sorry” is not enough?

Channel 4 managed to pack in 115 uses by Gordan Ramsay “of the most offensive language (i.e. “fuck“, “fucking” and “fucked”)”  in a programme broadcast after the 9pm watershed on 30 January 2009.  Despite being well-known for his swearing, 51 viewers felt this was too much, and complained to Ofcom.

Ofcom carried out its investigation and found Channel 4 to have breached Rule 2.3 of the Broadcasting Code (offensive content must be justified by context).  (See Ofcom Broadcast Bulletin, Issue 133, 11 May 2009.)

Channel 4 apologised, and were not fined.  What’s that about?  Ofcom cbfa?!