Spalpeen

Below is an essay I submitted to David Leigh’s Investigative Journalism class.

The biggest factor influencing the effectiveness of investigative journalism is the state and the laws within which it is being practiced. The effectiveness of journalism is often defined within the paradigm of “states”. Reporters Without Borders maintains the press freedom index, which ranks states according to their record of press freedom. Even in conversation the importance of the state in influencing journalism is repeated: we’ve all heard the stereotype that the British press (with its tabloid newspapers) scrutinises the behaviour and actions of politicians more effectively than the American press.

I believe that direct and indirect influence from the state system in which journalism is conducted is one of the biggest hindrances to the furthering of universal principles of investigative journalism, and that investigative journalism is most potent when it bypasses or overrides this influence. What should be desired is an international attitude to investigative journalism, based in the principles of international human rights law, and international cooperation. The international system of states is the biggest roadblock to this aim.

It’s useful to start with a country with one of the most powerful states in the modern world: China. Until relatively recently the Chinese state could have been said to have encouraged investigative journalism. Over the last 30 years, loosened party control of the media and new media outlets have firmly established investigative journalism practices within mainstream media. In the past party officials encouraged investigative journalists willing to spend time in digging out corruption. “These new journalistic developments were not in opposition to the party: on the contrary, the party leadership encouraged and supported many of them.”

This encouragement led to an institutionalization of investigative practices amongst some Chinese media organisations. Papers like Dahe Daily introduced investigative series like the “Public Opinion Monitoring Reports”, with the result of an increased revenue from 3.2 million RMB in 1997 to 300 million in 2003. Unfortunately, when the state decided it didn’t like specific publications of practices, it could easily fix the situation in its favour. Southern Weekend, once a publication looked up to by aspiring young journalists in China for its crusading investigations into corruption and against those who abused their power, is neutered today. In 2001 the Communist Party assigned a new editor-in-chief to the paper, who took the paper in the direction of “serving the middle class” and providing “constructive opinions,” journalism speak for not very interesting.

Even in the UK and Europe, the state is one of the biggest factors affecting investigative journalism. Libel laws in the UK mean that journalistic organisations are only free to publish information to the extent to which they can afford expensive libel lawyers. One notable example is the pressure imposed on Chambers and Partners due to libel challenges [UPDATE: this original mentioned the "demise of Chambers and Partners", when in fact that publication is alive and well. Apologies.]. Large newspaper groups also tend to apologise and settle rather than fight expensive court battles, and will only fight on cases based on important principles, or when they know they can win. This situation can be largely blamed on the lack of political will to change these libel laws. Although Jack Straw has announced a review (primarily aimed at libel tourism, rather than the cost of defending actions), he has also chosen to include the views of Carter Ruck in the review, a firm which uses the laws to the highest effect.

The policies of the individual countries of the European Union can also be seen in the decisions of the European Court of Human Rights (ECHR). In December 2009 the court ruled in favour of The Financial Times, the Independent, the Guardian, the Times and Reuters in their appeal against a judgment asking them to hand over documents relating to Belgian brewing firm, Interbrew, upholding the principle of protection of anonymous sources. A month before that, the Court ruled that “indefinite liability” for internet publications did not breach Article 10 of the Convention.

Although the ECHR may uphold tested principles like the anonymity of sources, this latter case shows that it may still have some way to go in battling the U.K.’s strict libel laws. The political will to copy the US “single publication rule” and overrule the precedent established by cases like Godfrey vs Demon Internet 1999 is not present within the EU.

The tax situation is one area of the law that indirectly shapes the strength and form of investigative journalism in a country. In the United States, individuals donating money to organisations classed as 503(c)(3) under the tax code can deduct donation payments from their tax return. That has created an extremely strong and vibrant set of foundations and charities supporting investigative journalism. In the United Kingdom, donations to charity are tax free, but donors cannot claim the deductible amount: the extra 22 per cent deduction is added onto the donation. The UK does not have a tradition of foundations supporting investigative journalism.

Gavin MacFadyean of the Centre for Investigative Journalism, speaking at an NUJ event, said that this is one reason why 75 per cent of investigative journalism in the United States is conducted by bodies other than the “mainstream media”. Foundations like the Knight Foundation, the Sandler Foundation and the Fund for Investigative Journalism in the U.S. are not matched by their equivalents in the U.K. Further exacerbating the problem, bodies like the Investigations Fund, run via the Centre for Investigative Journalism, are only able to take on a production/funding role, rather than a more efficient publishing role, due to a combination of the U.K.’s libel laws and their less secure funding.

As we have seen through these examples of state control, the practice of investigative journalism is massively shaped by the state in which it takes place. One possible solution to this problem is to remove investigative journalism from the constraints of the state system, a prospect raised by the actions of Wikileaks.org. As part of a drive to raise awareness and find funding, the organisers of the site have embarked on an initiative to try and create an “offshore publication centre” akin to a “Switzerland of bits” in Iceland. Wikileaks hopes to establish a safe haven for investigative journalism that takes “the source protection laws from Sweden […] the First Amendment from the United States, [and the] Belgium protection laws for journalists.”

Sources
P.337 Tong and Sparks, Investigative Journalism in China Today.
P.344 Tong and Sparks.
http://www.bigbrotherwatch.org.uk/home/2009/10/britains-libel-laws-are-killing-investigative-journalism.html
http://lawprofessors.typepad.com/media_law_prof_blog/2009/12/european-court-of-human-rights-says-media-can-protect-anonymous-sources.html
http://www.out-law.com/page-9858
http://onlinejournalismblog.com/2010/01/18/nujs-making-journalism-pay-online-five-points/
WikiLeaks’ spokesman Daniel Schmitt at the Chaos Communication Congress (26C3) in Berlin. December, 2009