Two journalists misrepresent themselves as constituents of members of parliament to gain access to appointments at their advice surgeries, and proceed secretly to record their conversations with the MPs – conversations from which their editors then quote selectively in prominent front-page stories. Is this ethical? Is it even legal? David Howarth is asking the questions.
The Press Complaints Commission's code forbids the use of subterfuge, misrepresentation and clandestine recording devices, except where the publication is in the public interest and the information cannot be obtained any other way. The public interest includes "preventing the public from being misled by an action or statement of an individual or organisation".
That might sound promising for the journalists. The trouble is, however, that they would have to point to some specific prior action or statement of the MPs concerned that had created a misleading impression. Collective cabinet responsibility, for example, does not mean that everyone in the cabinet is claiming to agree with cabinet decisions. It means only that ministers agree not to contradict them in public.
Where the journalists' subterfuge, misrepresentation and use of clandestine devices themselves create public dissension from cabinet decisions that otherwise would not exist, the journalists cannot claim that they were acting to prevent a pre-existing misleading impression. The public contradiction is entirely of the journalists' own making. One cannot claim to be a hero by attempting to rescue a person one has just pushed into a lake.
What about legality? The MPs might have civil actions in breach of confidence and breach of copyright. Breach of confidence occurs whenever someone makes information public that a reasonable person would have expected to remain private. That is undoubtedly the case here, but there is a complication – the MPs would have to show that they had suffered loss and there is a defence of disclosure in the public interest. If the MP does not in the event lose his or her ministerial job as a result of the disclosure, loss might be difficult to prove.
Moreover, if the disclosure that most threatens the MP's job is one that might plausibly count as in the public interest – for example that the MP had pre-determined a decision in which quasi-judicial neutrality was required – it might be difficult to argue that other breaches had caused the loss.
Breach of copyright is more promising – copyright exists in the spoken word as soon as it recorded – and it is possible to sue not only for losses but also for the defendants' gains, namely the extra income the newspaper received from higher sales and website hits as a result of the story. (This is an outside possibility too in breach of confidence, but tricky outside purely commercial contexts.) The equivalent of public interest disclosure – the fair dealing defence – would be awkward for journalists where they had lied their way to obtaining the recording. On the other hand, proving the exact amount of the newspaper's gain would be difficult and potentially expensive.
But there is an even more serious possibility for the journalists and for their newspaper: the criminal law. Section 2 of the Fraud Act 2006 makes it a criminal offence, punishable by up to 10 years in prison, to dishonestly make a false representation with the intention of putting someone at risk of pecuniary loss or with the intention of making a pecuniary gain for another.
Unlike in the civil law, what counts is the defendants' intention to cause harm, rather than the actual result. Did the journalists and their editors intend through dishonest false statements to put ministers at risk of losing their jobs? Did they intend to make money for their paper? If either is true, a criminal offence has taken place. There is no free-standing public interest defence. Perhaps the journalists involved should now be preparing their answers to those questions.
David Howarth is a former shadow solicitor general and was Lib Dem MP for Cambridge between 2005 and 2010