To begin with, 'investigative journalism' is where journalists go off the agenda and decide the agenda themselves. This could include subject matter on a lightweight or television or entertainment-led agenda. The 'classic' investigations are based on heavy subjects, and the most common subject of investigative journalism is based on financial topics.
The classic 'off agenda' is miscarriage of justice whereby people are framed and go to jail. The Criminal Cases Review Commission was created in 1995 and has the power to refer to the Court of Appeal any conviction or sentence if the Commission considers there is a real possibility it will be quashed. The right of a convicted prisoner to be visited in jail by a journalist investigating whether there had been a miscarriage of jsutive was upheld in R v Secretary for the Home Department, ex p Simms [1999] 3 All ER 400.
There is an evidence gap between civil and criminal standards of proof. For civil law, the standards of proof are based on the balance of probability, whereas the standard of proof for criminal law has to be beyond reasonable doubt. The Daily Mail's famous branding of five men, suspected of killing the London teenager Stephen Lawrence, as 'murderers' is illustrative of how journalism can operate this gap between civil and criminal law. As this story was not on the agenda, this also illustrates a very effective piece of investigative journalism.
Article 8 of the Convention of Human Rights lays down the law on the right to privacy. It states;
"1) Everyone has the right to respect for his private and family life, his home and his correspondence.
2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society
-in the interests of national security, public safety or the economic wellbeing of a country,
-for the prevention of disorder or crime,
-for the protection of health or morals, or
-for the protection of the rights and freedom of others."
Journalists were concerned about the right to privacy effecting their freedom to publish true information of public interest. Section 12 of the Human Rights Act states that where a court is considering imposing an unjunction in a matter involving freedom of expression and journalistic, literary or artisic material, it must have particular regard to the extent to which the media defendant has complied with 'any relevant privacy code'.
Breach of confidence is based on the principle that a person who has acquired information in confidence should not take unfair advantage of it. In a new approach to the law of confidence, the questionis whether Article 8 was 'engaged' which depends on whether the information was private. The decision is also based on whether the person claiming had a 'reasonable expectation of privacy'.
The Max Mosley case is an important case in regards to privacy. In this case the News of the World printed the story of the involvement of Max Mosley in a sadomasochistic orgy with five women, claiming that it had a nazi theme. It also put secretly filmed footage on its website. The News of the World's informant was one of the women who had taken part in the sado-masochistic activities. Mr Justice Eady held that the woman informant owed a duty of confidence, as in previous cases where the relationship was transitory. It was said that if the activities had mocked the way in which Jews were treated in concentration camps or parodied Holocaust horror, then there would have been a public interest. The judge could not find a public interest to justify the intrusion, filming or publication.
When investigative journalism is based on celebrity lifestyles or health, the journalists may not have the protection they expected even if the way they obtained and checked the information conformed to the 10 part test set out in the Reynolds case.
Protection of confidential sources of information is the key professional duty of a journalist. Refusal to reveal secret sources of information, however, could lead to prosecution for contempt of court.
An important point which was highly stressed within the lecture today is subterfuge. This means that when interviewing, you have to make it clear that you are a journalist and that you are reporting. Also as a journalist you need to make it known that anything that is said may be published. When recording you must seek consent, and this consent must be explicit. Once consented, almost anything can be published. If there is no consent to the information being published then you will have no evidence, however you may still quote the person interviewed.
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