The legal challenges faced by investigative reporters before a hard- hitting story can be published are always going to be tough. And perhaps rightly so. Serious investigations into misconduct and corruption, such as the scandal of sex abuse in the Catholic church featured in the Oscar’s film of the year Spotlight, can force inquiries, change laws and put reputations at stake. But without the backing of laws that recognise the importance to the public of such investigations many of those stories would remain hidden.
Journalists and editors not only have to find the story, piece it together and corroborate it, they then have to convince their own lawyers that the story is strong enough to resist legal challenge. If a libel claim is successful, an entire investigation risks being undermined and ultimately forgotten.
In the United States, the first amendment is relied on to protect freedom of expression. Apple is even set to argue that the clause applies to computer encryption in its fight to prevent an iPhone, used by terrorists in shootings in San Bernadino, from being unlocked by the FBI. The newspaper in Spotlight,The Boston Globe, may not have worried for too long whether a libel claim would be sent from the Vatican, but in England there is no such constitutional defence for freedom of expression. There is also no protection for politicians and public figures as there is in the US.
Cases fought by publishers over the years shape the legal landscape in England. Many only succeed in the appeal courts and at great expense. The number of investigations that faltered or fell because that route was too expensive is hard to quantify. Those cases are the main guidance for an investigative journalist, setting out requirements for how they can show that their investigations were sound and responsible. Inevitably, the law requires evidence to back up stories and detailed explanations of why a journalist thought the investigation to be in the public interest.
The Defamation Act 2013, still in its infancy, also contains a key clause for investigative journalism. Section 4 replaced what was known as the “Reynolds” defence, after a case brought by the former Irish prime minister, Albert Reynolds, against The Sunday Times heard in the House of Lords in 1999. Although it was hoped the defence would be liberating, particularly for investigations, it was quickly branded a false dawn. A ten-point list of standards for journalists set out by Lord Nicholls became notorious for libel defence lawyers who saw it as too expensive and complicated to use. Without a public interest defence, a journalist could only defend a libel claim by proving all the allegations as true. This is often difficult, particularly where whistleblowers need to be kept confidential for fear of reprisal, or where documents are highly suggestive but not conclusive of wrongdoing. Times Newspapers has nonetheless successfully argued a public interest defence on three occasions in the past four years on stories as varied as a police officer investigated but then cleared of corruption, a politician prepared to abuse his position as an MP and the head of an organised criminal gang, involved in drug trafficking and murder. In each case a judge was tasked with identifying the benefit to the public of an investigation.
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The new public interest defence, under section 4, is yet to be tested but its enactment tried to mop up the uncertainty. The new clause says that if a journalist reasonably believes an article is in the public interest he or she should have a defence but the court should look at all the circumstances of the case, including the conduct of a journalist. Deploying the defence almost inevitably will put a journalist in the witness box, and often an editor. So the hurdles for any investigator are still high but should be fortified by the recent Reynolds cases.
This act too was almost a false dawn. While it was going through parliament an amendment was tabled that threatened to put it off track in an effort to include in legislation some of the recommendations of lord justice Leveson. It is sometimes hard to see what risks being thrown away. What was at stake were law reforms that not only assisted the press but also the public. Investigations snap at the heels of individuals, businesses and politicians. Fifa had its doors forced open. But occasionally individual lives are improved when cases are tried. Last week Arsheid Hussain, named by The Times in 2013 as a suspected sex abuser, was imprisoned for 35 years. The police only investigated Hussain when The Times, which had already fought off a threatened injunction by Rotherham county council, reported that police files showed serious grounds to suspect that a 14-year-old girl had been groomed and abused by a gang. Some editors would have agreed the investigation was newsworthy but not all would have been prepared to defend a legal case.
The public interest defence has some way to go but it is taking shape; and that means a spotlight can continue to shine. And that can only be of benefit to the public.
Pia Sarma is the editorial legal director at Times Newspapers