Negative Portrayal of an Individual or Company by an Undercover Journalist

Undercover journalism is used by the media to report on stories that they feel the public have a right to know via methods that would not normally be used. Where a journalist’s actions would fall outside of the law, it has to be determined that the ends justified the means and that the reporting of the story was needed in the public interest. There is a fine line between the press’s freedom of speech and ensuring those that are the subject of the story have their own rights protected.

If your reputation has been threatened by an undercover journalist, click below for a free initial consultation with one of our expert Reputation & Privacy solicitors.

Freedom of expression vs right to a private life

The right to freedom of expression extends to everyone and is enshrined under Article 10 of the European Convention on Human Rights (ECHR). This includes the media, who play a vital role in sharing information with the public on all matters of public interest.

However, the right to freedom of expression is not limitless and journalists have to ensure that they are not only abiding by the law but also following the relevant codes of conduct and regulations that govern their industry. They are expected to act in good faith and provide accurate and factually correct information that they have verified.

Responsible journalism is done in line with the ethical codes and regulations for the media. The reporting should be balanced and give the subject of the article a right of response. Individuals have a right to a private and family life under Article 8 of the ECHR and where the media use covert methods to produce sensational articles this could move into harassment by the media. Everyone has the right to live privately away from unwanted media attention and this includes celebrities and figures of public interest. In order to justify breaching a person’s right to privacy, the journalist has to satisfy the public interest test. The more private and intimate the information, the harder this will be to prove. The journalist needs to determine whether the information would contribute to a discussion of public interest.

What is the public interest test?

Journalists should abide by the law in the same way as anyone else. The only reason that they can use methods to report on a story that breach relevant laws or regulations is if it is in the public interest for the information to be published. The journalist has to show that the public interest of the story outweighed their need to follow the law.

Issues that are considered to be of public interest include:

• Improper use of public funds
• Misuse of public office
• Protection of public health, safety or the environment
• Detecting or exposing criminal activity or impropriety
• Protection of national security
• Preventing the public being misled by the behaviour of an individual or organisation

What rules and law govern journalism?

Whether or not the journalist is acting correctly in relation to the public interest test will be considered in relation to three different areas:

• Criminal legislation as well as civil law, for example in relation to defamation
• Regulatory codes and guidance, for example the Editors Code of Conduct as administered by the Independent Press Standards Association
• Internal monitoring and governance by the publication itself

Is undercover journalism legal?

Journalists should always act in good faith and ensure that they are acting responsibly. This means that where possible the subject of the information should give their consent before it is published. However, it is recognised this is not always possible. Where undercover journalism is used to obtain the information, the publication needs to consider whether the public interest test is met to obtain the information in this way. Certain criminal activities cannot be justified by the story being in the public interest (for example phone hacking).

Investigative journalism using covert methods to record interviews with non-public figures is only allowed in limited circumstances. Where the interview is to discuss a matter of public interest focusing on the person’s professional life then this can be permissible so long as various precautions are in place such as disguising who the person is being interviewed and not doing it at their place of work.

Undercover journalism should not be used to hound those in the public eye including celebrities and any information obtained in this way (including photographs) should not be disseminated.

What about the impact on the individual or business?

The content of the story will also be considered when deciding if it was correct for the information to be published. Where there will be a negative impact on the subject, the journalist should carefully consider whether or not it is correct to share the information. The fact that the subject’s personal life (and that of their family) could also be negatively impacted is something else that should be taken into account.

Where the story is defamatory or causes harassment, then the individual or company that is affected should take expert legal advice on what action can be taken in relation to a story that causes a negative impact on their reputation.