Future of Investigative Journalism: Communications Committee Report

Lord Black of Brentwood Excerpts

Wednesday 25th July 2012 Grand Committee

[Lord Black of Brentwood]

My Lords, I declare an interest in this debate as executive director of the Telegraph Media Group and chairman of the Press Standards Board of Finance. I draw attention to my other media interests in the register.

There could not be a better time for this House to consider the future of investigative journalism on the back of this admirable report. Having heard about its genesis, that goes to prove the point that all the best thoughts occur in the bath. For over a year, journalism has been subject to an intense and often excruciating spotlight. Three police investigations, a judicial inquiry with sweeping legal powers and a number of extremely thorough Select and Joint Committee inquiries have all placed British newspapers and those who work for them under unparalleled scrutiny. The force of the law, whether through police investigation or the sweeping powers invested in the Leveson inquiry under the Inquiries Act 2005, has been felt in the newsrooms of every national newspaper—and, indeed, of some local newspapers. This has been a period of unprecedented pain in the long and proud history of the British press.

It is worth emphasising that no one would ever do anything other than condemn a breach of the law. Where crimes happen, in the press or in any other walk of life, they must be punished. We have seen in the events of the past day or so that justice does, indeed, take its course, but in looking at the future of the press, particularly investigative journalism, what is crucial now is a sense of perspective. Many of the inquiries have concentrated on a small number of journalists and on events that in the main date back many years. Some of the evidence at the Leveson inquiry related to incidents in the late 1980s. What has often been ignored during this period is the fact that the vast majority of journalists are decent, honourable, hard-working individuals who came into the business to serve the public interest and their local communities. I think in particular of the regional press, as the noble Lord, Lord Stoneham of Droxford, said; it is vital to the fabric of local democracy in this country, and its proud record of investigative journalism and civic engagement has often been overlooked in recent months.

That is why I strongly welcome this excellent report from the Communications Select Committee. My noble friend Lord Inglewood and all his colleagues are to be congratulated on it. It is a report that is solidly grounded in the real world and in the day to day practicalities of the industry. In eschewing headline-grabbing issues, it is full of common-sense practical ideas to ensure that investigative journalism has a future in this country. I am not going to talk about the training recommendations. I echo what noble Lords have said about training, which is often one of the first things to go when times are tough.

I do not want to dwell on what precisely investigative journalism is or why it is important. That is set out extremely well in the report. It is, as my noble friend said, to speak truth to power, whether that power be national or local, and to do so without fear or favour.

At the moment, investigative journalism is under threat from two different sources. First, as has been touched on a number of times in the debate, the industry is facing serious commercial difficulties as a result of profound and rapid structural change. Then there is the increasing burden of law, which is having a chilling impact on freedom of expression. I should like to look briefly at each in turn.

First, I shall look at the economics. Investigative journalism costs money, but money is in increasingly short supply. Chapter 2 of the report deals with these issues in a thorough and cogent fashion. This is an industry whose business model is crumbling. To survive, it has to find new revenues from digital operations, and the most innovative publishers are working extremely hard to do so. However, print revenues are declining more quickly than new income streams are growing. For some years there will therefore be a period of serious commercial dislocation within the industry, as indeed the most recent results from the Guardian Media Group, which recorded a pre-tax loss of £75.6 million for the last financial year, showed.

At his inquiry last week, Lord Justice Leveson described it as, “all rather depressing”. It is a lot more than depressing; it is deadly, because if newspapers cannot afford to invest in investigative journalism, no one else is going to do it—and that then puts democracy itself in jeopardy.

Personally, I am an optimist about the long-term future of the industry, because change and creativity is in its DNA. I believe that the best will adapt and flourish, but there will certainly be difficult times ahead before that happens. The report recommends that the Government should “think creatively” about ways in which they can,

“help the industry through this difficult transitional stage”.

There are a number of ways in which they can do that. First, they can seek to ensure that expensive and unnecessary regulatory burdens on the industry are kept to a minimum and, where possible, lifted. Let there be a bonfire of red tape. That would be of massive importance to the regional press in particular.

Secondly, particularly with regard to the local and regional press, the Government must move to ensure that consolidation can occur among local publishers without the impossible burden of Competition Commission inquiries. The report rightly refers to the recent shameful example of the closure of a number of local newspaper titles in Kent following a Competition Commission referral. If we are serious about seeking to safeguard the long-term health of our newspaper industry, these anachronistic takeover procedures must go. The report is absolutely right on that.

Thirdly, we should ensure that our copyright laws support investment in journalism rather than undermine it. In the absence of state subsidy—no one in the newspaper industry would want that—an independent press ultimately depends upon robust copyright laws for protection of its editorial content and as the foundation for any financial return on this investment. This is particularly important in the digital age. The noble Lord, Lord Macdonald, was absolutely right to point to the profound impact of digital technology. Nowhere is that impact set in sharper focus than in the whole question of the protection of content.

The UK’s copyright laws, and in particular the Copyright, Designs and Patents Act 1988, have allowed editors to edit, publishers to publish and media companies to innovate, in print and online, so that our content can always be available in whatever form, manner and media that our readers and customers want. It is vital that the bedrock protection of the 1988 Act cannot be chipped away through creation, amendment or removal of exemptions by secondary legislation, as Clause 57 of the Enterprise and Regulatory Reform Bill would allow, to the concern of the publishing industry, even if that were not the intention of the clause.

Nor should the law’s protection of publishers’ rights be eroded to allow others to exploit our news services and editorial content without permission, payment or punishment. Again, if we are serious about investigative journalism, we must be serious about copyright. I should be grateful to hear what the Minister can do to reassure the industry on that point.

Moving on from economics, an increasing burden of law is impacting on investigative journalism. In recent years, the Human Rights Act 1998 has handed to those with something to hide, and the resources to use the legislation, significant new powers with which to threaten newspapers. Then there is the Data Protection Act 1998, the terms of which are so wide that they encompass virtually all journalistic activity. There is also the Regulation of Investigatory Powers Act 2000, which was used to convict journalists accused of phone hacking back in 2005, and more recently the Bribery Act 2010. Taken together, all this legislation has a significant chilling effect on investigative journalism. In addition, we still have antiquated defamation laws, which underpin and magnify that effect.

On that last issue, the reform of our repressive libel laws, we can thankfully at last put a big tick in the box, as the noble Lord said. The Defamation Bill, which should reach this House in the autumn, goes a very long way to creating the new, robust and workable defences needed to protect investigative journalism in the digital age in the 21st century.

However, there is much more to be done. One of the most serious issues highlighted by the report is that a great deal of legislation impacting on the media has no public interest defence in it. The Regulation of Investigatory Powers Act has none; the Bribery Act has none; nor does the Official Secrets Act 1989 or the Computer Misuse Act 1990. The noble Lord, Lord Inglewood, touched on this issue. I readily appreciate that there is a limit to what can be done as so much statute is involved, but there are two practical areas where action can be taken.

First, I have no doubt that concerns about the application of the Data Protection Act continue to have a chilling impact on investigative journalism. The DPA is drawn extremely widely and touches on every part of the investigative process. There is currently a public interest defence for breaches of Section 55 of the Act, but it is not robust enough. As matters stand, a journalist could breach the terms of the Act in the course of an investigation because he or she believed that they were pursuing a story that turned out to have no basis. This happens because not every hunch or tip-off turns out to be accurate and therefore provide a story in the public interest.

The previous Government recognised that this was a weakness in the Act and amended it by adding an enhanced public interest defence to new Section 55(2) in Section 78 of the Criminal Justice and Immigration Act 2008. That defence is based on the fact that a journalist was acting in,

“the reasonable belief that in the particular circumstances the obtaining, disclosing or procuring was justified as being in the public interest”.

Such a defence could be a real boost to investigative journalism. It sits on the statute book but has never been brought into force. Given the weight of legislative burdens on the press, now would be a good time to do so.

The second area, which my noble friend has referred to, relates to the manner in which the prosecuting authorities operate, which is dealt with in paragraphs 86 to 88 of the report. As we have heard, since the report was published, the Director of Public Prosecutions has produced his interim guidelines for prosecutors on assessing the public interest in cases affecting the media. I strongly commend these guidelines. They will be a protection for good journalism and, rightly, a scourge on the bad.

The DPP is currently consulting on the guidelines, and I believe he has had a constructive response from across the industry. I hope that the guidance may be amended to include due regard for a journalist’s belief that his or her investigation served the potential public interest and that he or she was acting in compliance with a relevant regulatory code, as I believe this is right for professional standards within the industry. In any case, the DPP’s guidelines will go a substantial way to dealing with the paucity of public interest defences in legislation impacting on the press, which the report rightly highlighted.

Those are two practical and straightforward areas in which we could help the craft of investigative journalism. I would like to finish with a few words about the future of regulation, which is in many ways the elephant in the Moses Room.

First, noble Lords will be aware that I have been involved, with my noble friend Lord Hunt of Wirral, in putting together a proposal for a system of modern, robust, proactive and independently led self-regulation. Based on legally binding contracts, it will for the first time give a new regulator powers of enforcement, compliance and sanction, which the noble Lord, Lord Stoneham, was talking about earlier. Not only will this system provide real protection for the public from unwarranted intrusion, it will work to protect the public interest and investigative journalism. One of the ways it will do this is by ensuring that there is a real renewal of internal governance within newspapers themselves. This works with the grain of the excellent recommendations made by the committee on internal management issues.

Secondly, I have to warn noble Lords that the biggest threat imaginable to investigative journalism in this country will come from any form of regulation based, however slender in manner, in statute. To give a regulator a power in statute would be to give those under the scrutiny of the press some form of control over it. That would be the beginning of the end of investigative journalism. The single most important guarantor of the future of investigative journalism lies, I believe, in the maintenance of self-regulation, which is the only form of regulation that can protect what the Lord Chief Justice has rightly described as the “constitutional principle” of the independence and freedom of the press. That principle recognises that journalism is the exercise of a fundamental human right—that of free speech—which no regulated profession exercises. No other trade or profession has the responsibility of holding politicians and Governments to account, so limitations on journalists must therefore be self-imposed rather than imposed by those under its scrutiny.

While there are practical ways in which we can support investigative journalism, both by seeking to protect the commercial position of newspapers and by breaking down legal obstacles, as this commendable report sets out so clearly, this remains the single biggest issue which all those interested in and passionate about the future of a free press have to face.