Journalism, Power and Investigation

Global and Activist Perspectives

Stuart Price

• Publisher: Routledge
• Year: 2019
• Print ISBN: 9781138743069
• eBook ISBN: 9781351723695
• Topic: Social Sciences
• Subtopic: Media Studies
• Index: Social Sciences

Journalism, Power and Investigation presents a contemporary, trans-national analysis of investigative journalism. Beginning with a detailed introduction that examines the relationship between this form of public communication and normative conceptions of democracy, the book offers a selection of spirited contributions to current debates concerning the place, function, and political impact of investigative work. The 14 chapters, produced by practising journalists, academics, and activists, cover a range of topics, with examples drawn from the global struggle to produce reliable, in-depth accounts of public events.

The collection brings together a range of significant investigations from across the world. These include an assignment conducted in the dangerous sectarian environment of Iraq, close engagement with Spain's Memory Movement, and an account of the work of radical charity Global Witness. Other chapters examine the relationship between journalists and state/corporate power, the troubled political legacy of WikiLeaks, the legal constraints on investigative journalism in the UK, and the bold international agenda of the investigative collective The Ferret. This material is accompanied by other analytical pieces on events in Bermuda, Brazil, and Egypt.

Investigative journalism is a form of reportage that has long provided a benchmark for in-depth, critical interventions. Using numerous case studies, Journalism, Power and Investigation gives students and researchers an insight into the principles and methods that animate this global search for truth and justice.

Part I
Investigative journalism, public integrity, and the state

This first section exemplifies the central theme of the book, concentrating on the relationships between the practitioner, the state, and other influential forces. The study begins with Richard Danbury’s account in Chapter 1 of the moral and legal challenges posed when investigative journalists in the UK have to deal with controversial issues – in this case, the legal ‘duty to report’ any information relating to existing (and quite broad) definitions of terrorist activity. Based in part on an incident in which Danbury and a colleague were approached about an apparently palpable and immediate threat, the chapter examines the dilemmas faced by journalists who have to contend with a competing set of obligations – to their sources, to the authorities, to the public, and to themselves. Unlike those depictions of journalistic activity that confine themselves to an abstract account of the dilemmas faced in the course of an investigation, Danbury offers both a description of the practical hurdles he and his colleague had to overcome, and an analysis of the general principles that shaped their actions, warning the reader that there are ‘many legal burdens imposed on journalists to reveal information to the authorities, some of which have criminal sanctions for non-compliance’. The chapter also includes interviews with journalists and legal practitioners, who discuss issues like the ‘chilling effect’ that some of them attribute to the pressure of anti-terror legislation.

Chapter 2, written by Ben Harbisher, draws attention to the ‘massive scale’ of state surveillance, which includes ‘military, political, commercial, and domestic targets’. The author goes on to identify ‘fusion centres’, hybrid agencies that are not only dedicated to the monitoring of terrorist activity, but also of those groups and movements that might constitute a threat to capitalism and state power. This form of conflation is enshrined in the notion of ‘multi-issue extremism’, where ‘cause-led activism and legitimate public protest’ are subjected to illegal scrutiny. One of the many useful aspects of Harbisher’s contribution is his discussion of the methods employed by investigators. He notes that readily available public sources and search engines, such as LexisNexis, will yield extremely valuable information for the groups he identifies as the most eager to uncover the details of surveillance – journalists, academics, and activists. He also covers the use of Freedom of Information requests and the data sets produced by whistleblowers, ending by entreating the reader to ‘consider both the risks, and the inherent limitations of conducting this type of research’.

Stuart Price, in Chapter 3, examines the relationship between journalists and those forms of authority that both enable and constrain the production of news. Identifying no less than ten forms or sites of influence, Price refers to a variety of national and global contexts that affect all reporters, drawing his examples from the UK, South Africa, Canada, Libya, Malaysia, Spain, China, Uganda, and Russia. The various situations described here are used to substantiate his argument that the pressures on journalists (full-time or ‘freelance’) should be understood as part of a wider ‘trans-national attempt to discipline workers’ under the ideological aegis of managerialism. According to this perspective, ‘failing’ institutions may appear to be on the brink of collapse, but are still used as clearing houses for capital, at the expense of their employees. Price also takes the position that there are diametrically opposed modes of communication, one broadly propagandist, and the other that, whatever its faults, attempts to serve the public interest. This division, he argues, can be attributed to ‘a structural contradiction within the information economy’, and the fact that the real commitment of dominant groups is to the appearance of integrity and civic virtue. He argues, in conclusion, that the determined enquiries of investigative journalists ‘will continue to provide a corrective to the dubious, multi-agency exercise of “discretion” on matters that should never have been hidden from public view’. Underlying this position, however, is the author’s belief that journalism does not need to be unambiguously ‘moral’ to act as a counterweight to powerful social forces, but that it does so by virtue of the fact that it is procedurally intrusive.

Chapter 4 is a co-written piece by Richard Danbury and Judith Townend, which deals with the legal and technological obstacles that can prevent journalists from protecting their sources. Discussing the need to balance the interests of the authorities and other social actors, they argue that ‘there is no absolute value in … protecting national security in itself, or the administration of justice in itself’, because these goals are only worthwhile if they serve ‘the protection of higher order interests’. The authors provide examples of legal complexity when they describe the practical implications of the UK’s Contempt of Court Act, 1981, and the Police and Criminal Evidence Act of 1984, which provide guidance that can be interpreted in more than one way, and which can therefore serve more than one interest. Besides the opportunities provided by legislation enacted under the Regulation of Investigatory Powers Act 2000, and its updated version in 2016, the police and other state operatives have used a number of devices and avenues of enquiry, in order to discover the origin of news stories that they find objectionable. Danbury and Townend obtained useful insights into the issue of source protection, when they organised a round-table made up of journalists and legal experts, allowing them to access a wealth of practical experience and advice.

1 Investigative journalism and terrorism

The proactive legal duty to report¹

Richard Danbury

Introduction

In the spring of 2007, BBC ‘Newsnight’ reporter Richard Watson received a tip-off that someone wanted to contact us about a terrorist living in the UK. At the time, I was Richard’s producer, and we were both acutely aware that any lead of this nature had to be taken seriously (two years before, there had been an attack on the London transportation system in which more than 50 people were murdered). The tip-off was that a woman would be willing to speak to us about her husband who, she said, had expressed ‘pro-jihadi’ sympathies. She had left him and was now living elsewhere, but claimed that he had collected some disturbing material on his computers. Although that was not particularly remarkable – as there are probably thousands of people in the UK who fit this description – she also maintained that her husband was connected to active extreme militant jihadi groups. This was altogether more worrying, and prompted us to treat the matter as an urgent priority.

The first step was to meet the woman and assess her story: if credible, we had to persuade her to let us record an interview with her. We met her, and she agreed to be filmed, but only if we took a responsible attitude to her personal safety. Having discussed what that might entail, we agreed that we would take every step to help make her anonymous in our report. We chose to interview her in a car park (an indeterminate location that we thought would help protect her identity), and were careful to frame the shots so that she could not be identified from the raw footage. She spoke in a language from the Indian subcontinent, so we used a translator, and recorded half an hour or so of material. We checked she was content with what she had said, ensuring afterwards that she could follow a safe route back to her house.

In our interview she said that her husband had asked her whether she would be prepared to strap on a belt of explosives, and become Britain’s first female suicide bomber. She also revealed that she thought her husband had advance knowledge of the 2005 attack on London. Although she said that she did not know his current whereabouts, she believed he had relocated to a city in the North, and was still involved with extremism. We knew that our half-hour interview would have to be cut down to about five minutes, as that would be all the time made available for the broadcast. Most of the filming had been carried out with angled shots, carefully framed to keep her anonymous, but we still had to consider how to use the recording of her voice. When we got to the edit suite, we had to calculate how much of this to keep in the film, knowing that this kind of interview works best if snippets of the original speech are inserted before the translation is heard. In the broadcast material, we had retained some of the woman’s actual voice, an action we subsequently regretted, as we discovered that some extremists who wished her ill were trying to identify her from the small excerpts of speech that we had left in the footage.

Investigative journalism and proactive duties to report to the police

This anecdote introduces an important issue facing journalists investigating terrorism, wherever they practice in the world. We had discovered information that might be relevant to a terrorist enquiry. We considered it to be in the public interest to broadcast the information, in order to contribute to debates about the state of the country, the nature of any terrorist threat, and the appropriateness of the state’s response to it. However, did we also have a separate duty to inform the authorities about the results of our investigation? Did this duty exist even if the authorities had not approached us for information? If we did have some form of obligation, could it be a legal duty, backed up by the full force of the criminal law? Behind these questions was a wider normative issue applicable more generally to all journalists in any country investigating terrorism: should such duties exist in the first place?

The questions pertaining to the existence of laws were the easier to answer: in the UK at least, there are indeed definite legal duties. They arise predominantly because of section 19 and section 38B of the Terrorism Act (2000). Knowing this to be the case, after we finished the interview but before we edited it into a film for transmission, we telephoned the police. We called the National Terrorist Hotline. We told the officer who answered that we had interviewed the woman concerned, and provided a summary of what she said, while giving the authorities sufficient information to enable them to find her. We were able to do this because, before the filming started, we had already made it clear to our subject that if we conducted the interview, we would be obliged to take this course of action. Richard Watson was filmed telephoning the police, a sequence that was included in the final broadcast.

Faced with the kind of circumstances just described, journalists should recognise a moral or professional responsibility to provide the authorities with information. Such duties will be more pressing the closer one is to an imminent terrorist attack, and less pressing when there appears to be no immediate threat. This is not, however, the same as saying that it is appropriate that journalists should operate under a legal obligation to pass on information to the state, which will result in their being prosecuted if they do not do so. That said, there are indeed many legal burdens imposed on journalists to reveal information to the authorities, some of which have criminal sanctions for non-compliance (see Chapter 4). But, importantly, these duties almost always arise after the state has sought information. The duties under sections 19 and 38B of the Terrorism Act (2000) are anomalous because they arise regardless of whether the state actually asks for any material, or even knows about its existence. As such, they are proactive legal duties to inform, rather than reactive legal duties.

Such proactive legal duties to report information, failure to comply with which could lead to criminal sanctions, are unusual in modern English law (Cousens, 2013: vol 84, §43). Historically, it is true, they were more common and can be traced back to mediaeval times, when the absence of a paid professional police force meant that the responsibility for law enforcement fell on members of the public. Hence, for example, from the mid-thirteenth century, there was a common law obligation to prevent criminal violence (Heyman, 1994: 685). But over time such duties were largely abandoned, and by 1967 the last significant example was eradicated with the abolition of a common law offence called ‘misprision of felony’ (Lloyd, 1996: 14.23, and see below).² That said, there remained some provisions relating to Northern Ireland, a fact that will also be discussed later, but by 1996, the government report into terrorism legislation, written by Lord Lloyd of Berwick, recommended that even these be abandoned, as a matter of principle and practice (Lloyd, 1996: Chapter 14).

However, in recent years, these older approaches seem to be creeping back, and not only with respect to terrorism. They also seem to be emerging in areas such as immigration law (Aliverti, 2015), and the law regulating financial conduct (for a U.S. perspective, see Guerra Thompson, 2002). A ‘partnership approach’ to policing seeks to impose duties on both the public and the professions, so that they can pass on information and help enforce the law.

Why might such legal duties be objectionable, and particularly so within those areas of journalism dedicated to the investigation of terrorism? (They may also of course be offensive to other professions.)³ One reason is that what some interpret as a partnership, others may see as the creation of an atmosphere in which individuals are encouraged to denounce their neighbours (Docs Not Cops, 2014; Together Against Prevent, 2015; Anderson, 2016). Surely, however, a serious journalist, or indeed any responsible citizen, should have no objection to helping the police prevent terrorism? As Charles Clarke MP (then a Home Office minister), said when the provision that would become section 19 was being debated in Parliament:

Journalists, too, have an obligation to their profession, just like the other professions that we have mentioned, but that should not excuse them from their responsibilities to society. For example, a journalist may become aware that Canary Wharf is about to be blown up but decides not to tell anyone in order to protect his sources. That would be unacceptable.

(House of Commons, 1999–2000: 4th sitting, 25 January 2000, 9.30pm)

Few would argue with this statement. But what is less clear is whether such duties arise, the further removed we get from Clarke’s example.⁴ Do they arise when we are not dealing with a ticking bomb, which might kill thousands of people, but when we are dealing with people who have breached the terrorism acts on a technicality? This is a particular problem given the breadth and scope of the UK’s anti-terror laws. Should the duty arise when journalists are dealing with people who have merely sent clothing to their children, an apparently innocuous act, but one that is likely to breach the provisions of the Terrorism Act, 2000 (see below for further elucidation of this example). Even if journalists operate under a duty in such circumstances, should the duty to report the issue be a legal duty, which leads to a criminal conviction if it is breached? Lord Lloyd thought not, at least in the context of Northern Ireland, as he recommended in his review of Northern Irish terrorism laws that such laws be abolished. He argued that ‘there is the point of principle that, while every citizen has a moral obligation to help the police, the state should be reluctant to transform this into a legal duty’. He also wrote, and this is a point to which this chapter will return, ‘I do not regard it as satisfactory to create a wide-ranging offence, and then circumscribe it by an [administrative provision]’ (Lloyd, 1996: 14.21–14.23).

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Table of contents

• Cover
• Half Title
• Title
• Copyright
• Dedication
• Contents
• List of figures
• List of contributors
• Acknowledgements
• Introduction: journalism, democracy, and the critique of political culture
• Part I Investigative journalism, public integrity, and the state
• Part II Activism, investigation, and the quest for social justice
• Part III The hazards of investigation: journalists on assignment
• Part IV An industry in turmoil: fake news, leaks, and economic challenges