Not so foolish these Lords of ours. As inquiries were starting left, right and centre into newspaper malpractice following the phone hacking revelations last July, the Lords recognised there was a need for some balance, particularly from Parliament. So they wisely decided to go against the grain and announce an inquiry into the future of investigative journalism.
They are right to have been concerned. The recession, coupled with a structural decline in the print press and the new competitive demands of digital media have meant that, in the print press at least, there is less spent on original, from the ground up, journalism. This is particularly true at local level where circulations have plummeted and advertising revenue has fallen off a cliff in the last decade. There is evidence that in certain local areas there is now sparse reporting of council meetings and court cases, and little scrutiny of other public authorities. This is certainly the case in south Wales, where we run a joint project on the future of local news with Cardiff University.
The Lords’ report makes some sensible recommendations. It presses the government to offer further tax breaks or other financial incentives to help news through this ‘difficult transitional phase’. With this in mind it urges the government to rethink existing charity law to make it clearer that investigative journalism counts as a charitable purpose. It recommends that news organisations keep an audit trail of decisions, which could then be used as a defence against legal action. It also raises entirely valid concerns about the growth of public relations, and the opaque use of public relations material by journalists. This leads it to the excellent recommendation that:
“journalists themselves be transparent in their use of press releases particularly online where barriers to publishing links to press releases are low” (Paragraph 278).
As the creators of churnalism.com, built for exactly this purpose, we would most certainly endorse this recommendation.
These recommendations, though useful, would have been more helpful with some flesh on the bone. Tax breaks for investigative journalism makes sense, but what taxes? Withdrawing VAT zero rating from news organisations that do not join a regulatory organisation would be a very powerful incentive to join, but would it be illegal under EU law – as the Committee suggests it might – or not? And is 25% the right threshold for invoking the public interest test? The Committee farms this question off to Ofcom, Leveson and the CMS Committee when it could have suggested criteria itself.
The report has also, in my view, missed some critical opportunities. It comes out against public interest defences for journalism in law. Its rationale for this is that ‘it is not realistic for all relevant existing criminal laws to be changed’. This seems like an odd reason given that you would not have to change all relevant existing criminal laws. A statutory public interest defence for disclosure could be written into a bill (say the Protection of Freedoms Bill), with reference to the various laws to which it applies (e.g. RIPA, Computer Misuse Act, Official Secrets Act). Not only is this realistic, it’s relatively straightforward.
The alternative the report suggests – the publication of decisions based on public interest by prosecuting authorities – fudges the problem. The difficulty, as a number of editors have explained at Leveson, is that publications do not currently feel properly protected when doing something they know to be in the public interest, but which may involve practices which break the law. James Harding, editor of The Times, told the Leveson Inquiry:
“The world we live in now is very odd, because I fear that the public interest defence we have is currently too narrow and not sufficiently robust, but more than that, it’s very uneven, so it applies to some laws and not to others. So we’re in the odd situation that blagging — you can impersonate your way to securing a document, but you could not buy that document, say, from the knowledge that you had a public interest defence” (Leveson Inquiry, 17th January, Morning Hearing).
If editors feel this way, then individual journalists and others exposing information in the public interest, will feel it even more acutely. Only with a statutory public interest defence will they feel in a strong enough position to investigate where they might need to break the law.
The report also falls into the trap of blurring the financial health of the incumbent news industry with the future of journalism. “[W]e welcome the Government’s removal in June 2011”, the report says in paragraph 159, “of the local cross-media ownership restrictions; this should also help support local media outlets by enabling them to consolidate across media platform”. Ownership rules are anachronistic, that’s true, but it is naive to think their relaxation is likely to lead to investment in investigative journalism. One need only look at how many of the incumbents have, when given the choice over the last decade, chosen to cut editorial costs rather than sacrifice profits.
The Lords Committee also shies away from criticising the government’s Local TV plans. This is a shame because the plans represent a massive missed opportunity when it comes to investigative journalism. The government plans to spend £25 million on transmitters with a shelf-life of 3-5 years, and another £15 million on television programming that will be only marginally about public interest journalism. Imagine, if instead of spending the money on transmitters and features programming, it turned the £40 million into an innovation fund for news, similar to the Knight News Challenge in the US. Organisations and individuals could apply for funds for innovative news projects, new investigative journalism ventures, and entrepreneurial news initiatives. Suddenly, an issue where there is real cause for concern would blossom with energy and creativity. And all without spending any more than has already been committed.
Now that would have been a radical, forward looking recommendation.