Law Commission Gives Backing To Investigative Journalism

The Law Commission has given its backing to investigative journalism by agreeing that there may on rare occasions be an “editorial need and public interest” for news media publishers to engage with intimate images.

Publishing the findings of its consultation into the criminal law around taking, making and sharing intimate images without consent, the Commission said that news publishers rarely engage with intimate images as a result of editorial standards and codes.

But, quoting News Media Association evidence to the consultation, the Commission said it agreed that the taking and internal sharing of intimate images may be a part of a journalistic investigation and it was “sensible” to see that as an activity “which might be undertaken in the public interest.”  

The Commission said: “The News Media Association generally agreed with our position in the consultation paper. As they put it, though news publishers rarely engage with intimate images as a result of editorial standards and codes, “there may be a very small number of exceptions for which there is an editorial need and public interest, which must not be stifled.

“They pointed out that when journalists investigate matters the public interest is not always immediately obvious and journalists should not be deterred from investigating a story in such circumstances.

“They argued the taking and internal sharing of intimate images may be a part of that investigation. We agree. It is sensible to see that activity as one which might be undertaken in the public interest, though – as with any defence – any and all instances of taking and sharing must be justified to the requisite standard. The public interest defence is not a permission for unfettered behaviour prior to publication.”

In its report, the Commission added: “The NMA also sought clarification about whether undercover journalism would be viewed as conduct done in bad faith, arguing that the practice is sometimes necessary and that the two should not be conflated:

‘Undercover investigative journalism, which is subject to higher editorial standards, plays a crucial role in modern democracy and has been a catalyst for social and legal change by shedding light on crime, corruption and injustice.’

“We agree that undercover journalism will not necessarily demonstrate bad faith. We do not see a need to state it as a specific exception, not least because given the rarity of the circumstances that does not seem necessary but also because the facts of any given case will be relevant to a public interest determination.”