Skip to main content

Opinion: Why journalists need public interest defense

By Thais Portilho-Shrimpton, for CNN
updated 6:43 AM EDT, Tue April 10, 2012
 A protester poses as James Murdoch reading a spoof newspaper following allegations of hacking at News International in 2011
A protester poses as James Murdoch reading a spoof newspaper following allegations of hacking at News International in 2011
STORY HIGHLIGHTS
  • British journalist argues for public interest defense in some cases of hacking
  • There is key difference between peddling gossip and exposing wrongdoing
  • On rare occasions, journalists could be justified in monitoring emails, phones, she argues

Editor's note: Thais Portilho-Shrimpton is a journalist, commentator and co-ordinator of the Hacked Off campaign. Published in the UK and Brazil, she has contributed to a range of newspapers, including the Guardian and Independent on Sunday. She tweets as @selkie

(CNN) -- Journalism is not as black and white as most people would like to believe. We ought to be able to see all shades of grey between the fresh revelations of email hacking by a Sky News reporter, the News International phone hacking scandal and other examples of journalists breaking the law to obtain stories.

The Guardian revealed last week that Sky News reporter Gerard Tubb illegally accessed emails from the personal account of John Darwin, also known as "canoe man", who, in 2007, pleaded guilty to faking his own death.

Darwin's wife, Anne, was due to stand trial for deception in 2008, but the reporter had collected a sufficient amount of emails, he believed, to crush her defense at trial.

Journalist Thais Portilho-Shrimpton
Journalist Thais Portilho-Shrimpton

The hacking was authorized by Simon Cole, managing editor of Sky News, who stepped down from his position on the same day the Guardian story was published. Emails were given to Cleveland police, used in the successful prosecution and, according to Sky News, "pivotal to the case". Cole has since then tweeted he had been planning to retire for "some time" and the decision was unrelated to the hacking revelations.

Sky News claimed the interception of emails was "justified and in the public interest" and "subject to the proper editorial controls".

Those are the two key aspects that seem to separate this instance from two others: the phone hacking scandal and the outing of the Night Jack blogger by The Times.

Sky News admits to and defends hacking
Neil: Murdoch ruined by hacking scandal

Richard Horton, a detective constable at Lancashire police, won the Orwell Prize in 2009 for his anonymous blog Night Jack, about life in the police force. His identity was then exposed against his wishes by reporter Patrick Foster, from The Times. The discovery of his identity was revealed in February this year to have been made via the hacking of his email account.

Unlike the outing of Horton, the hacking carried out by Sky News seems to have been a carefully considered decision by a senior executive as to whether it was in the public interest to commit a prima facie breach of the Computer Misuse Act. It was most likely a calculated risk, taken with the understanding that the Act itself offers no public interest defense and that both Sky News and the reporter would be liable to criminal charges and subject to the discretion of the Crown Prosecution Service not to prosecute. In the Night Jack case, a reporter made the decision to intercept Horton's emails without telling his editors and therefore without subjecting his decision to "proper editorial controls".

If the Computer Misuse Act did offer such defense, the public interest in obtaining information via interception of emails would still have to be weighed by the courts. But Sky News, for instance, would have been able to explain to the public more confidently, from the outset, how the story came to light. I would say this is what we want from journalism -- transparency, responsibility and governance. This may seem a paradox, but that's what we want from newspapers and journalists even when they break the law.

And despite having indisputably broken the law, the process Sky News seems to have undergone to break this story is a far cry from the industrial-scale criminality carried out and admitted to by News International.

What we have found out so far about phone hacking is that during a period of at least two years, hundreds of individuals had their details collected by a private investigator at the request of journalists. Deputy Assistant Commissioner Sue Akers, head of Operation Weeting - the police investigation into phone hacking - told the Leveson Inquiry into the culture, practices and ethics of the British press, that 581 "likely" victims of phone hacking were contacted by police; 231 were uncontactable and 17 were not contacted for operational reasons.

Subsequent to having their details collected, those individuals had their voicemail messages intercepted, listened to and used for an array of stories no one has been able to prove as yet were in the public interest. In fact, the majority of cases we have seen so far, if not all, involved obtaining information to write and publish stories about people's private lives with no good, justifiable reason.

There is a fundamental difference between using a private investigator at any given time to turn around a story on tittle-tattle, or to fish for stories and monitor people's lives, and to make a careful, considered decision to carry out a breach of the law in order to expose wrongdoing.

No one here is advocating a free for all or trying to make it easier for journalists to act like criminals. But if journalists can speak openly about the sourcing of stories, then everybody wins. Accountability is increased, journalists feel more confident to be transparent about their actions and to pursue genuine stories, and sheer criminality can be more easily identified.

No one here is advocating a free for all or trying to make it easier for journalists to act like criminals
Thais Portilho-Shrimpton, journalist

In my view, the Computer Misuse Act, Regulation of Investigatory Powers Act, Official Secrets Act (mainly for protection of sources), should all provide a public interest defense for the protection of journalists and real journalism. The Reynolds defense for libel, which is always tested in court, should also be improved.

Martin Moore, director of the Media Standards Trust, and Brian Cathcart, Professor of Journalism at Kingston University, decided to launch the Hacked Off campaign because it was becoming increasingly clear that phone hacking carried out by the News of The World was more widespread than News International and the Metropolitan Police cared to let us know.

The campaign, supported by actors Hugh Grant and Steve Coogan, and several other victims of phone hacking and other abuses by the press, pushed and continues to push for criminality to be exposed, but we have always made absolutely clear that genuine, responsible journalism, carried out in the best interest of the public, should be protected.

We will, however, continue to condemn fishing expeditions and industrial scale data-mining and hacking, which are clearly criminal and unjustifiable.

ADVERTISEMENT
Part of complete coverage on
updated 6:03 PM EDT, Tue August 19, 2014
It used to be billy clubs, fire hoses and snarling German shepherds. Now it's armored personnel carriers and flash-bang grenades, writes Kara Dansky.
updated 1:27 PM EDT, Wed August 20, 2014
Maria Haberfeld: People who are unfamiliar with police work can reasonably ask, why was an unarmed man shot so many times, and why was deadly force used at all?
updated 5:52 PM EDT, Mon August 18, 2014
Ruben Navarrette notes that this fall, minority students will outnumber white students at America's public schools.
updated 5:21 PM EDT, Tue August 19, 2014
Humans have driven to extinction four marine mammal species in modern times. As you read this, we are on the brink of losing the fifth, write three experts.
updated 7:58 AM EDT, Tue August 19, 2014
It's been ten days since Michael Brown was killed, and his family is still waiting for information from investigators about what happened to their young man, writes Mel Robbins
updated 1:23 PM EDT, Wed August 20, 2014
Sally Kohn says the Ferguson protests reflect broader patterns of racial injustice across the country, from chronic police violence and abuse against black men to the persistent economic and social exclusion of communities of color.
updated 8:42 AM EDT, Mon August 18, 2014
The former U.K. prime minister and current U.N. envoy says there are 500 days left to fulfill the Millennium Goals' promise to children.
updated 9:10 AM EDT, Mon August 18, 2014
Julian Zelizer says the left mistrusts Clinton but there are ways she can win support from liberals in 2016
updated 1:38 PM EDT, Wed August 20, 2014
Peter Bergen says the terror group is a huge threat in Iraq but only a potential one in the U.S.
updated 1:34 PM EDT, Sat August 16, 2014
Mark O'Mara says the way cops, media, politicians and protesters have behaved since Michael Brown's shooting shows not all the right people have learned the right lessons
updated 11:23 AM EDT, Sun August 17, 2014
Retired Lt. Gen. Mark Hertling says the American military advisers in Iraq are sizing up what needs to be done and recommending accordingly
updated 3:41 PM EDT, Fri August 15, 2014
Marc Lamont Hill says the President's comments on the Michael Brown shooting ignored its racial implications
updated 5:46 PM EDT, Fri August 15, 2014
Joe Stork says the catastrophe in northern Iraq continues, even though many religious minorities have fled to safety: ISIS forces -- intent on purging them -- still control the area where they lived
updated 6:26 PM EDT, Thu August 14, 2014
Tim Lynch says Pentagon's policy of doling out military weapons to police forces is misguided and dangerous.
updated 9:15 AM EDT, Fri August 15, 2014
S.E. Cupp says millennials want big ideas and rapid change; she talks to one of their number who serves in Congress
updated 7:57 PM EDT, Thu August 14, 2014
Dorothy Brown says the power structure is dominated by whites in a town that is 68% black. Elected officials who sat by silently as chaos erupted after Michael Brown shooting should be voted out of office
updated 7:49 AM EDT, Thu August 14, 2014
Bill Schmitz says the media and other adults should never explain suicide as a means of escaping pain. Robin Williams' tragic death offers a chance to educate about prevention
updated 11:05 AM EDT, Fri August 15, 2014
Nafees Syed says President Obama should renew the quest to eliminate bias in the criminal justice system
updated 4:24 PM EDT, Thu August 14, 2014
Eric Liu says what's unfolded in the Missouri town is a shocking violation of American constitutional rights and should be a wake-up call to all
updated 3:22 PM EDT, Wed August 13, 2014
Neal Gabler says Lauren Bacall, a talent in her own right, will be defined by her marriage with the great actor Humphrey Bogart
updated 6:56 AM EDT, Fri August 15, 2014
Bob Butler says the arrest of two journalists covering the Ferguson story is alarming
updated 4:35 PM EDT, Wed August 13, 2014
Mark O'Mara says we all need to work together to make sure the tension between police and African-Americans doesn't result in more tragedies
updated 4:06 PM EDT, Mon August 18, 2014
Pepper Schwartz asks why young women are so entranced with Kardashian, who's putting together a 352-page book of selfies
updated 7:08 PM EDT, Wed August 13, 2014
Michael Friedman says depression does not discriminate, cannot be bargained with and shows no mercy.
updated 11:25 AM EDT, Tue August 12, 2014
LZ Granderson says we must not surrender to apathy about the injustice faced by African Americans
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT