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Tuesday, August 19, 2008

Incisive Media Journalist Threatened With Jail

Incisive Media has got into a very public spat with the pensions regulator. According to a statement by CEO Tim Weller, a junior journalist was threatened with jail, by phone, unless she revealed her sources for the story.

The original story is here. My understanding is that the facts of the story are not disputed. The pensions regulator argues that "restricted information" has been misused.

In his robust defence of the journalist, Weller says,
"The right of journalists to protect their sources is vital if the media is to be able to do its job properly," Here, here.

I am in no position to argue the point of law. But here are my thoughts. The right of a journalist to protect sources is not absolute. A matter of national security for example might lead both morally and legally to a journalist revealing a source. So we cannot defend the journalist simply by getting on our high horse. The question we must answer is a moral and legal one. In this particular circumstance is it right for the journalist to protect her source? First, is the public interest served by the publication of the story? Second, does publication compromise the possible future prosection of a criminal offence?

The regulator relies on the Pensions Act 2004 in which clause 72 states,

"The Regulator may, by notice in writing, require any person to whom subsection (2) applies to produce any document, or provide any other information,"

The Act also prohibits the release of "restricted information". I cannot offer a legal opinion, but it seems to me that if any offence has been committed, it is by the person who has released the information - not the journalist - and in any event it would have to be demonstrated that the information was "restricted" and that the release of the source by the journalist was in the public interest.

Second, the clause allowing the regulator to demand documents etc, appears in the legislation in the section about investigation of premises and so on. It seems clear that the intent of the law was to enable the regulator to demand access to documents held by pension companies it was investigating, not journalists to whom information about an investigation may have been leaked.

In any event, the core facts of the matter are readily ascertainable from the public record for as the original story says,
"The company no longer appears on the regulator’s approved panel of independent trustee firms listed on its website."

In other words, the action taken by the regulator is visible to all. The matter at dispute is the access the journalist appears to have had to "restricted documents".

Morally and in my worthless opinion, Weller is right. On this occasion, the journalist ought to be able to protect her source.

There is precedent. Many years ago a trainee journalist at what was then Morgan Grampian ended up in court to prtoect a source, and lost being fined £5000, and in a case between Elton John and The Express in 1990, Lord Justice Wolf said in his summary;

"When orders were to be made requiring journalists to depart from their normal professional standards of confidentiality for their sources, the merits of their doing so in the public interest had to be clearly demonstrated. The minimum requirement was that other avenues to find the source had been explored". In the Elton John case the court again ruled that the source should be revealed, for reasons not relevant to this case.

It seems to me, that at this early point in the Incisive example, de minimus, it is for the pension regulator to demonstrate that it has made efforts to trace the source by other means, and that identification of the source is in the public interest. The publisher should stand firm.

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