Don’t give elites a legal way to strangle investigative journalism
Nick Hopkins, The Guardian
If MPs agree to some of the more radical clauses in the data protection bill, the media may no longer be able to challenge the conduct of powerful people
There is a point in almost every journalistic investigation when you have to show your cards to the other side. It’s the heart-in-mouth moment when your research sees daylight, your findings are tested, your assumptions challenged. It’s uncomfortable – and it should be. In the nine years since the Guardian exposed industrial-scale phone hacking by the News of the World, we have continued to challenge the conduct of rich and powerful elites, most recently in the Panama Papers and Paradise Papers investigations. But projects such as these would be unlikely to happen again if MPs agree to some of the more radical clauses in the 250-page data protection bill going through parliament.
The possibility of an even broader Leveson 2 style inquiry remains real, and is underpinned (clause 142) by a belief that the balance between privacy and freedom of expression needs to be recalibrated towards the former – and that only this will properly make amends for past crimes. Nobody should be an apologist for those, and nobody I know working at the Guardian is. But the casual aligning of arguments (if you oppose Leveson 2, you are betraying victims of phone hacking) has rather overshadowed the practical consequences.
At the moment, when we show our cards, we anticipate that the responses we get back will very likely be from highly aggressive lawyers, who will use every adjective available to decry what we are doing and deter us from publishing – and/or threaten us with injunctions to stop us in our tracks. They are not usually bothered about the truth so much as protecting their clients’ reputations. It is hard to imagine the Guardian, or any other media group, pursuing a story, however accurate, however strong the public interest argument for doing so, if those solicitors and the barristers they hire were able to charge us for the full costs of any subsequent litigation, even if we won.
Yet this is what is threatened by the bill. That looks like a licence to print money for media and reputation-management lawyers – as well as a legal snakebite that would paralyse investigative journalism.Over the past 18 months, the Guardian has challenged multinational companies, billionaires and oligarchs over their financial affairs. MPs and lords have come under the microscope too. Would we do it again if the data protection bill goes through as is? I doubt it. The financial risks would be too great. Those heart-in-mouth moments could become exercises in journalistic self-immolation.
There is no easy route through this. The media landscape has become an undignified mess in the years since the Guardian began its phone-hacking inquiry. But there are dangers that need to be recognised. Chief among them is that the understandable wish to support the victims of indefensible press intrusion could lead to the strangulation of legitimate investigative journalism. The forces that most influence our lives now are not the Fleet Street media organisations of yesteryear, but corporations and individuals of eye-watering wealth, some of which use the secrecy of offshore jurisdictions to avoid the scrutiny that journalists should be attempting. These people, and their businesses, don’t need more legal weapons to thwart us.
• Nick Hopkins is the Guardian’s head of investigations
uploaded: Tue, Mar 6 2018
modified: Tue, Dec 30 1969
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