The PCC’s adjudication against the Telegraph creates an important precedent where there are currently far too few. But on its own it is unlikely to have a major impact, either in the short or long term, on press practice.
The PCC concluded that the Telegraph’s use of ‘serious and intrusive’ methods of subterfuge was not justified by the evidence it had against the Liberal Democrat ministers concerned. It found that the Telegraph targeted eight Liberal Democrat ministers on a general suspicion that they did not agree with all the views of the Coalition government. Telegraph journalists met each of these ministers in their constituency surgeries, pretending to be constituents. In the privacy of the surgery they then recorded the politicians’ answers to the same series of broad policy related questions. There was, the PCC therefore concluded, a ‘dislocation’ between the vague and limited suspicions against the ministers and the method used to incriminate them.
The case was muddied by the fact that the Telegraph did – sort of – uncover a story of significant public interest. It recorded the Business Secretary, Vince Cable, saying that he had ‘declared war on Mr Murdoch’. Not so smart for the minister then responsible for scrutiny of the BSkyB deal. But the Telegraph only ‘sort of’ uncovered the story because it did so accidentally – it had not planned to ask Cable about the BSkyB deal – and did not, initially, publish those revelations (it was later accused of trying to hide the Murdoch quote because the paper was against the BSkyB deal).
Despite this, had the case only been about Vince Cable it would have been a much more difficult decision for the PCC. Even though the Telegraph’s Cable stories suggest retrospective justification (previously found inadmissible in Munro and Bancroft vs Evening Standard), the Telegraph could have claimed it was acting on additional evidence, the source of which it could not reveal. The PCC would have been hard pressed to disprove this and for this reason, would have found it difficult to uphold the complaint.
But since the Telegraph went not to one but to eight Liberal Democrat politicians, and asked each of them the same series of questions, it was much easier to conclude the Telegraph was simply fishing for stories. In addition to which its ‘haul’ from the other politicians was hardly the stuff of front page exclusives.
The PCC cites three previous cases as ‘relevant rulings’. The first is about the secret filming of an Emmerdale Christmas party from 2001 (Ryle v News of the World). The second concerns a journalist from the Evening Standard who spent a week in 2001 pretending to be a primary school teacher in north London (Munro and Bancroft v Evening Standard). The third is about a journalist who posed as a member of hotel staff in 2003 in order to investigate allegations of illegal working (Monckton vs Evening Standard). The first two complaints were upheld, the third was rejected.
These citations are useful not just as context for today’s adjudication. They show how few precedents there are on cases of this kind, and how even these few precedents are dated. Their agedness is particularly relevant given what we now know about the extent of subterfuge – via phone hacking and other methods since 2003. Notice that there was not one upheld adjudication about the use of subterfuge by the News of the World or News International between 2004 and 2011.
In total there have been 15 upheld adjudications related to subterfuge since 1996, 5 since 2003 (from PCC published records). Few of these offer clear precedents. None of them refer to elected politicians. The only MP to make a subterfuge complaint was Keith Vaz in 2008 – again against The Daily Telegraph. But this was about a letter passed to the Telegraph, not about any recording devices, nor was it upheld.
This adjudication is therefore very helpful in that it provides more detail about the level of evidence required by a newspaper before it starts secretly recording someone.
Even still, the case is unlikely to have significant long term impact. Tony Gallagher, the editor of the Telegraph, does not look set to resign. He has already made clear he strongly disputes the PCC’s decision and thinks it ‘has alarming implications for the future of investigative journalism’ (from The Guardian). The publication of the adjudication on page 4 of the Telegraph is unlikely to satisfy those who want tougher sanctions or at least adjudications that have closer equivalence (the original Telegraph articles were on a number of front pages). The ruling is also overshadowed by five years of inaction by the PCC over evidence of widespread subterfuge by the News of the World via phone hacking (including two ‘investigations’ that found nothing beyond ‘one rogue reporter’). Nor does the ruling effect those now outside the remit of the PCC, including Express Newspapers.
Still, it is a considered decision and the rhetoric of the PCC is stronger than it has been for some time.