Media Law: Investigative Journalism – Deception, Subterfuge and Misrepresentation

Investigative journalism is a primary source of information as it is a form of journalism whereby a reporter may spend months, even years, researching a single topic of interest – often involving issues surrounding crime. Such a profession would most likely require a more discreet approach to gathering information as the material would probably prove damaging to somebody – whether possibly relating to political corruption or even corporate wrong doing. However, there are restrictions on what is deemed acceptable in cases of public interest and what is considered a breach of the Editor’s Code of Practice. (Although breaching the Editor’s Code is not a criminal offence or a civil tort, observing its requirements is considered ethical conduct).

Clause 10 of the Editor’s Code says:

“ i) The press must not seek to obtain or publish material acquired by using hidden cameras or clandestine listening devices; or by intercepting private or mobile telephone calls, messages or emails; or by the unauthorised removal of documents or photographs; or by accessing digitally held private information without consent.

ii) Engaging in misrepresentation or subterfuge, including by agents or intermediaries, can generally be justified only in the public interest and then only when the material cannot be obtained by other means.”

Journalists should therefore be open and truthful when seeking information or comment, making clear from the outset to anyone unfamiliar with them that they are journalists.

Typically, photography or filming should be done openly, and eavesdropping by using ‘bugs’ or other hidden microphones will breach the code because the activity is ‘clandestine’. Such activities could be considered as a breach of privacy law and in most circumstances hacking into computers for private information will also breach the code and the law. However, if the story is justified by a sufficient public interest; a journalist posing as someone else or using other kinds of subterfuge is not breaching the code. Such deception is common in investigative journalism. On the other hand, the code says such tactics and methods should only be used when an open approach would not work, even when a public interest exception applies.  In addition, the Reynolds defence protects publication of material if it can be shown to be a matter of public interest and responsibly reported.

‘Fishing expeditions’

The Press Complaints Commission (PCC) has made clear in adjudications that it will not condone subterfuge or misrepresentation, or infringement of privacy, in ‘fishing expeditions’. A ‘fishing expedition’ is an investigation launched without sufficient, prima facie grounds to justify such methods. (In journalism ethics, the term prima facie grounds means that preliminary inquiries have established there is sufficient evidence and/or ground of suspicion to justify use of undercover tactics in an investigation.)

An editor who authorises the use of such activities needs to be able to demonstrate there is a specific allegation serious enough to justify them. Such applies if the investigation’s target was:

  • committing a crime; and/or
  • guilty of serious impropriety; and/or
  • misleading the public; and/or
  • putting people’s health or safety at risk.

Recording phone calls 

The PCC has made it clear that journalists who record calls they make or legitimately receive are not regarded as using a clandestine recording device under clause 10, even if they do not tell the other person the call is being recorded, so do not require a ‘public interest’ exception to justify their conduct. However, a journalist who does not declare that he/she is a journalist may breach the code’s ban on subterfuge and misrepresentation, unless the ‘public interest’ principle applies and there is no other reasonable way to obtain the information. Intercepting a phone call in most circumstances would breach the code and be illegal.


About brackenstockley

Contributor to the JusticeGap and WINOL. Currently studying journalism at the University of Winchester (Year Three).
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