Belfast Telegraph

Wednesday 16 April 2014

Brendan Conway v Sunday World judgement provides long-awaited vindication for investigative journalism

Olivia O'Kane
Olivia O'Kane

What do the following have in common? MPs’ expenses, Jimmy Savile, phone hacking, the Sunday Times and David Hunt, the Iraq war, internet and phone surveillance, child abuse, brutality in care homes, dog-fighting gangs and Liam Adams?

Without the protection of investigative journalism and the right of the media to report, the Guardian, BBC’s Spotlight, UTV’s Insight and the Sunday Times would not have been able to inform the public about matters which were in the public interest which the public have a right to be informed of.

The phrase that “News is what somebody does not want you to print — all the rest is advertising” has a loud ring of truth to it, especially when it comes to investigative journalism. Investigative journalism is the finding, reporting and presenting of news which other people try to keep secret.

Investigative journalism pieces are not just the final story that the public are informed of. Behind the story is a lengthy, painstaking and complex journalistic procedure operating within the law and which often involves vast amounts of preparatory work and sometimes dangerous encounters.

The journalist’s job is to let the public know what is going on in society and the world around them. Investigative journalism usually involves the exposure of incompetence, corruption, lies, hypocrisy, fraud, mismanagement, abuse of authority, corporate malpractice or negligence, crime and wrongdoing.

In so doing they assist the authorities in tracking down those that have ran foul of the law, as well as inform the public who in turn can decide for themselves what they think of the matter.

As Edmund Burke said: "There were three estates in parliament; but, in the reporters’ gallery yonder, there sat a Fourth Estate more important far than they all.”

He was talking about the media as the unofficial constitutional arm which sits outside the state. The free Press sits on the perimeters — as fourth estate — serving the community as the public watchdog.

Such intensive investigations take time and cost money. But the free flow of information in the public interest is vital to the function of the Fourth Estate — to the public watchdog, so that citizens can make informed choices in a democratic society.

A free Press is a constitutional necessity to ensure the survival of some liberties we take as a given. Without the acknowledgement of this role in society, the Press cannot impart that which is in the public interest to disclose and information which the public have a right to receive.

The judgment — Conway -v- Sunday World — acknowledged that “it is in the public interest that investigative journalism should not be impeded where it is publishing legitimate information concerning serious criminal activity”.

Mr Justice Gillen noted that, while the newspaper articles complained of by Mr Conway may have been pursued with “all the accusatory fervour of unflinching and unsparing investigative journalism”, the court formally approved that it is the “intensity of the probe” that is, in fact, often “the lifeblood of the right of freedom of expression”.

Recognising that journalists have no special rights in law and that each must operate within the remit of the legal rules, he said “the right of the Press to freedom of expression can be subjected to restrictions which are prescribed by law”.

Express recognition of the importance and value of the media’s editorial discretion was also time-honoured when he held that “it is not for the court ... to substitute their own views for those of the Press as to what technique of reporting should be adopted ... it is not for the courts to unduly restrict the discretion vested in editors as to how they present their stories.”

In this case, the plaintiff had sought to obtain from the court an order which would prevent publication of material concerning Mr Conway. Most of this material had already been reported upon and was in the public domain.

Mr Conway had claimed that his life was endangered by publication of this information and that further publication would expose him to a real and immediate threat to his life and a risk that he would be subjected to torture and inhuman or degrading treatment.

He also claimed that his photograph was private and further publication of his photograph was an intrusion into his privacy and that in general the newspaper articles constituted harassment of him.

Mr Conway had received notifications from the police confirming that his life was in danger and the court was satisfied that on that, and on all the other evidence that was placed before the court, that there was a risk to his life and to his safety.

The Sunday World had claimed that Mr Conway had very close associations and involvement with criminal activity and association with alleged leading members of dissident republicanism.

A variety of other mainstream media outlets, such as the Belfast Telegraph, UTV, BBC and UTV, had reported various allegations about Mr Conway, including his involvement in a robbery in 2012.

Mr Conway’s photograph was also available on the internet and had been published in previous news reports. The court considered that the Sunday World’s articles were “part of the widespread dispersal of information that abounded about this man [Mr Conway] in the public media”.

The media in Northern Ireland are increasingly telling me that, following news coverage of stories with high public-interest value, they are receiving legal threats, claiming that an individual’s life is in danger, or that they will be exposed to serious harm if the newspaper does not stop reporting about them. The media call these “gagging orders”.

These legal actions are extremely costly and often the legal threat can impose substantial legal costs on the media before any litigation commences to enable lawyers to explore the merits of the threats being made.

Mr Justice Gillen’s judgment has now provided long-awaited legal clarity and vindication for the media. Claims that news reporting must stop to protect life have absolutely no merits where news reporting is irrelevant to any risk that may exist.

In this case, the court held that is was impossible to draw the conclusion that the threat to life originated in the Sunday World’s articles. The obligation on state authorities to protect life is not absolute and will only arise when the legal threshold of exceptionality establishes that an operational duty arises.

In this case, the information about Mr Conway was already available to the public in one form, or other, due to his own activities. The court considered that Mr Conway created his own risk and it was a risk that was not exceptional.

In Northern Ireland, it is a sad truth that Mr Conway’s own activities can activate the threats to life and limb that he showed to the court. These risks could not be attributed to the Sunday World.

The court confirmed that it will not interfere with journalistic freedom unless it is absolutely necessary as to do so “would place a dead hand on the creative impulse of investigative journalism”.

 

** Olivia O’Kane is an associate with Carson McDowell LLP

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