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  EWHC 499 (QB), subsequently upheld by the House of Lords  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.
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.
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.