Journalists working in dodgy corners of the world will inevitably come up against corruption: access to a government minister might require a palm to be greased; a visa could be subject to a “facility fee”; a few dollars could hasten that border crossing on a lonely road late at night.
Let’s be clear: the Observer doesn’t bribe people or corrupt public servants. Our editorial code states that we do not pay for stories or pay sources and in the rare instances that we do, payments must be approved by the editor.
But what about that meal bought for a source to secure a vital interview or to get close to a big story? Could that be construed as corrupt?
The Bribery Act 2010, due to come into force next year, aims to clean up sleazy practices within the business world and catch out British executives who stuff brown envelopes with cash and hand them to foreign officials who have the power to cut red tape or advance a vital order.
Good thing, too, you might think, but that same act designates a wide range of practices that might currently be seen as acceptable schmoozing as criminal offences, making not only individuals liable to prosecution but their companies as well.
News organisations could be caught in the slipstream, with editors facing unlimited fines or up to 10 years’ imprisonment if a journalist made some sort of payment to a source, even in an attempt to expose wrongdoing.
So lunch for a public official anywhere in the world, including the UK, could be construed as a bribe. Journalists seeking off-the-record briefings with civil servants might be liable to prosecution – as would their lunch guests. An editor would not be able to demonstrate that a plate of lightly braised calf’s liver with broccoli al dente produced an important national story because, alarmingly, under the act there is no public interest defence and no de minimis exception – it appears to catch any cash sum, no matter how small.
A newspaper might be able to defend itself, however, if it could show that it had established the thorough anti-corruption procedures that the act insists every commercial company should devise – and that the journalist acted without authority.
Boards and senior managements must be familiar with these procedures and are required to implement training programmes, monitor compliance and establish an anti-bribery culture. The bureaucracy looks ridiculously cumbersome.
Government guidance on these procedures is due to be published in the new year, but ultimately it would be for the courts to decide whether any company’s governance was adequate. I’ve seen a draft of this guidance and it contains little or no indication as to how members of a jury would determine whether any company’s procedures were adequate.
And it goes on. A news organisation could potentially be liable if its subcontractor who distributes the paper abroad was found to be secretly paying a “fee” to a corrupt official to speed the delivery of its newspapers.
This all seems overly heavy-handed. It would be the ultimate irony if journalists who pride themselves on exposing corruption in public life were to be prosecuted for corruption themselves in the pursuit of the truth.
As Taylor Wessing media lawyer Timothy Pinto says: “This will largely come down to prosecutorial discretion. Let’s hope the authorities appreciate that journalists may occasionally have to put themselves in tricky situations in order to uncover corruption. However, journalists do need to wake up to the potential implications of this legislation or they could find themselves in serious trouble.”
The act is due to come into force in April. It is vital that prosecutors take into account journalism’s work in the public interest, both to protect the freedom of the press but, of greatest importance, to ensure that a well-intentioned law designed to thwart those engaged in serious corruption does not become a stumbling block to the public’s right to know.
This column was originally published in The Observer on Dec. 19, 2010.