You can't butcher me, I've got the law on my side

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The Independent Online
Programmes such as `World in Action' and `Dispatches' are now under threat from a new tide of legislation, both UK and European, which may limit journalists' abilities to research and report. Paul McCann looks at the challenge facing the television practitioners of investigative journalism.

Whenever we boast about the quality and superiority of British television it is not long before investigative documentaries are mentioned. Rightly World in Action, Dispatches, Rough Justice and the like are considered campaigning, investigative journalism at its best. They have helped change laws, free the unjustly imprisoned and get redress for the weak.

It is often remarked that increasing commercial concerns, competition for ratings and a general aversion to seriousness threatens the place of these programmes in the schedules.

In fact a far more pernicious threat to the British tradition of television investigations is coming at programme-makers: the law.

A series of British and European laws, combined with new tactics by those who have something to hide, and increasing pressures for privacy because of the manner of Diana, Princess of Wales's death are lining up to make the investigative journalists' job even harder than it already is.

British journalists have always worked within the confines of the strongest libel laws in the world. Then they have Contempt of Court and Official Secrets laws that contain no public interest exemptions.

Now added to these is a new threat from the Criminal Procedures and Investigations Act.

The Act, which became law last year, deals with the disclosure of evidence by the Police to the defence in a criminal case. Clause 17 of the Act now makes that material confidential and it is a contempt of court to use it outside the court case it was gathered for.

"I am very, very concerned that this will close us down," says David Jessel, the broadcaster and long-time investigator of miscarriages of justice. "When we do investigations it is through a thorough reading of the disclosed material that we can build our case. Now we are not going to be able to do that. There is yet to be a case come through since the Act because we only get involved once the appeals process has been exhausted."

Jim Nichol, the solicitor who fought to get the Bridgewater Three released, is looking for a case where the Criminal Procedures Act is invoked so that he can take it to the European Court of Justice to challenge its legality. "This could be the end of investigative journalism into convictions," says Nichol. "And it slipped through without anyone fighting it."

But it is not just bad British law that threatens investigators. The European Convention on Human Rights and the EU's Data Protection Directive are to be incorporated into British law and both could hamper investigators.

The Human Rights Convention's privacy clause is to be interpreted by judges, and television journalists are not confident about their instincts for freedom of speech: "It is very worrying," says Sam Bagnall, the producer of Dispatches' report on Sotheby's art smuggling. "Already in contempt of court rulings judges are supposed to consider whether a programme represents a `substantial risk of serious prejudice' yet judges generally apply it a lower level because they don't consider a TV investigation important. They are not generally sympathetic to free speech arguments."

There has already been an increasing use of the Law of Confidence to try to stop whistle-blowers talking to reporters or to try to get back from programme-makers documents which prove a misdemeanour. There is concern that privacy clauses in the Human Rights Convention may bolster this line of defence for those with suppression of the truth in mind.

Even more worrying is the loose way in which Europe has drafted its data protection directive. The way the directive interprets "processing data" about people could mean typing up notes on a celebrity before they are interviewed on the sofa of GMTV. The directive says that research into someone could only be assembled with their "unambiguous" consent. And it is not legal to assemble information on someone's ethnicity, religion and beliefs.

The directive is intended to prevent an individual's credit details being passed around companies. But it could mean Panorama having to get a terrorists' permission before conducting an investigation of him.

Broadcasters and newspapers are currently lobbying the government for an exemption to the directive when it is brought to the UK, but they are not optimistic. Since the death of Diana, the Government has been backtracking on giving the media an exemption for fear of looking soft on press intrusion.

This increase in legal threats to the undercover reporter's art comes at a time when companies are getting better at using TV regulations and the criminal law to hamper investigations.

This year a World in Action reporter, Ingrid Kelly, who got a job at the St Merryn Meat factory in Cornwall to uncover the way the meat was handled, found herself being investigated by the Devon and Cornwall Constabulary on a possible charge of deception.

The company and its PR advisors had obviously been reading American law journals. In 1992 a chain of American delicatessens called Food Lion took ABC News to court on a charge of fraud, trespass and breach of loyalty after reporters from the news programme Prime Time Live were employed with the company undercover. A hick South Carolina jury ignored the food hygiene violations exposed by the programme and awarded $5.5m in punitive damages to Food Lion. The case has had the effect of stymieing investigative journalism in the US.

Fortunately for British journalism the Crown Prosecution Service decided last month that it was not in the public interest to prosecute World in Action. But the CPS says it has no specific policy on undercover journalists so there is no guarantee a future criminal prosecution may not succeed.

The next fear is that companies will try private prosecutions for deception against undercover reporters.

Added to the concerns about criminal deception claims is the use to which anti-stalking legislation might be put. Badly drafted anti-stalking laws have already been used against animal rights protesters who campaign outside fur shops and research laboratories. It is only a matter of time before another Jonathan Aitken decides that reporters asking him questions about his relations with Middle Eastern arms dealers amounts to stalking and harassment.

The inherently secretive nature of British corporate and government culture, and the legislation that backs it up, means that there are myriad ways to try to hold up a broadcast.

"In the four weeks before transmission of the St Merryn meat programme we were threatened with five civil suits, one criminal case and three charges of breaking broadcasting regulations," says Steve Boulton, editor of World in Action. "Not one of which has come to pass."

Boulton identifies a new breed of crisis PR managers and lawyers who are increasingly pro-active in trying to impede journalists.

They inundate programmes with legal threats and correspondence, they re-interview sources that are contacted by reporters and they frequently advise companies not to put up a spokesman for interview because his words will be twisted by the unscrupulous programme-makers.

Worse still World in Action has had cases where a huge petrol company being investigated threatened to pull all its advertising from Granada television companies if the programme was aired.

In another case a private investigator approached a woman who was suspected of being a source for the programme with a file purporting to be her criminal record. Calls were made to prospective employers of this women warning that she was a whistle-blower. The police are now investigating how a criminal record - it was in fact for another woman with the same name - got into the hands of a private investigator.

Just last week it was revealed that Scientologists had employed American private detectives to investigate the makers of a Channel 4 Secret Lives documentary about their founder L Ron Hubbard.

More usually the first weapon of crisis PR managers is the broadcasting regulations. On ITV and Channel 4 reporters are covered by regulations from the Independent Television Commission. The BBC has a similarly strict set of Producer Guidelines. Last week these were augmented by the Broadcasting Standards Commission's code on fairness and privacy. At a first reading most broadcasters thought it similar to existing codes which required an "important" public interest reason to intrude on someone's privacy - particularly to film secretly. But the BSC's new code asks for an "overriding" public interest before secret filming can be allowed. Steve Boulton is worried that this difference in wording will just add to the legal hoops programme-makers have to leap through to get their investigations to air.

"News", says Steve Boulton, "is something that someone, somewhere, wants to keep secret. All the rest is advertising." The problem for those fighting these constraints is that in the public mind television investigations are tarred with the same brush as tabloid intrusions.

"When we broke the Sotheby story right-wing commentators were rolled out to condemn our secret filming and intrusion," says Sam Bagnall. "But there is this deliberate confusion where people try to lump what television does with what the tabloids do. But television never does a story on someone's sex life."

Despite the boom in television channels it is becoming increasingly rare for the medium to shine a light on the darker side of life. Indeed the boom in media and the competition it brings is making it less likely. But the need to defend television's right to shine that light is not just about the quality of television. It goes to the heart of our freedom.