The ethics of subterfuge

The means that Tehelka employed to achieve the expose involves a justified journalistic pursuit.

IT is amusing to hear persons caught in the act, as it were, cry "ethics" at their exposure by the tehelka.com on March 13. The web site has proved itself. The nation has accepted that its revelations are true and heads rolled in consequence. George Fern andes, falsely claimed that he had resigned as Defence Minister in order "to uphold the morale of the armed forces". A man who felt that concern would not have taken over 48 hours to resign; and, then, only after pressure from Prime Minister Atal Behari Vajpayee and in the face of clamour by all outside the ranks of his own immediate cabal. Not only the government but the entire system has been shaken to the roots by the disclosures. The worst fears and worst suspicions stand confirmed.

The Sunday Times

None of this is any reason, however, to gloss over the ethical aspect. That is always relevant in every situation, no matter how grave or delicate. The time to discuss it threadbare is now, lest this be regarded as a precedent mindlessly for all cases in the future. It is perfectly legitimate to ask: who will trust the journalist when he seeks an interview? And, how does one distinguish between this case and that, of say, Louise Fernandes who interviewed the distinguished historian Mushirul Hasan withou t disclosing to him that she was taping the conversation? She claimed on the TV that it was for her "protection".

When is subterfuge justified in the course of a journalist's work? Investi-gative journalism is different from press interviews, surely. It is far older than many imagine. As far back as 1885, W.T. Stead made news for the Pall Mall Gazette when he exposed child prostitution by going out and buying a twelve-year-old girl. As James Michael recalls, "It led to a good story, a change in the law, and some time in jail for Stead, whose purchase was taken seriously by the Court" (The Politics of Secr ecy; Penguin; 1982; page 93).

The issue of ethics calls for a nuanced and principled answer. In the Pentagon Papers case, first, The New York Times and, next, The Washington Post published a series of articles based on a secret Defence Department history of the United S tates' involvement in the Vietnam war. They had been provided the documents by Daniel Ellsberg, a former Defence Department and Rand Corporation official who had come to loathe the war. While still engaged in government work, Ellsberg had secretly copied these classified papers. They revealed that, for years, successive administrations had made decisions at the highest level in ways that deliberately deceived the nation. The White House and the Departments of State and Defence said one thing to the peop le while doing its opposite. They knew that their statements and assurances were false.

The government moved the courts to restrain publication. The case finally reached the Supreme Court. On June 30, 1971, the court ruled in The New York Times vs United States, by six votes to three, that the Times could proceed with the publication (403 U.S. 713; Chief Justice Warren E. Burger tartly remarked that the duty to return stolen property applies as much to The New York Times as it does to cab drivers. The majority disagreed, because of the facts of the case. Justice Hugo Black sa id: "Paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fences and foreign shot and shell. In my view, far from d eserving condemnation for their courageous reporting, The New York Times, The Washington Post, and other newspapers should be commended for serving the purpose that the Founding Fathers saw so clearly. In revealing the workings of government that led to the Vietnam war, the newspapers nobly did precisely that which the Founding Fathers hoped and trusted they would do." He added: "The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic." Prime Minister Atal Behari Vajpayee expressed an illiberal view on this point on March 17.

Clive Ponting, a senior official in the Ministry of Defence, gave information to an MP, Tam Dalyell, which undermined the truth of ministerial answers in the House of Commons to his questions about the sinking of the "Belgrano" by the British navy in the Falklands war. Prosecuted under the Official Secrets Act, the jury acquitted him in rejection of the judge's interpretation of Section 2 of the Act that the words "the interests of the state" were synonymous with the policies of the government of the da y. In Britain and in the United States "the whistleblower" has acquired recognition - the civil servant who exposes a wrong while in service. In the U.S. there is even a statute to protect him, the Whistleblower Protection Act, 1989. In all these cases o fficial deception was exposed by resort to subterfuge or the covert. The courts upheld that. Who knows even now the identity of "Deep Throat" of Watergate fame?

We need not go further with analogies; for, there is a precedent which bears directly on the tehelka.com case and a ruling by the British Press Complaints Commission which covers it fully. Unlike the Press Council of India (PCI) - to which, curiously, no ne made a reference during the debate - the Commission is not a statutory body. It is set up as a full self-regulatory measure by the press itself to uphold and enforce a Code of Conduct formulated, not by the Commission, let alone the Government, but by the press itself. It is now a decade old. A committee of editors, under the chairmanship of the editor of the News of the World, Patricia Chapman, drew up the Code. Editors are represented on the Commission. Its membership is drawn from the whole range of newspapers and periodicals in contrast to that of the PCI.

Paragraph 7 of the Code reads thus: "Misrepresentation-(i) Journalists should not generally obtain or seek to obtain information or pictures through misrepresentation or subterfuge. (ii) Unless in the public interest, documents or photographs shou ld be removed only with the express consent of the owner. (iii) Subterfuge can be justified only in the public interest and only when material cannot be obtained by any other means." Paragraph 17 says: "Journalists have a moral obligation to protect conf idential sources of information."

Paragraph 18 defines the expression "the public interest" as used in paragraph 7, besides other provisions such as paragraph 5 which says: "Unless justified by public interest, journalists should not obtain or publish material obtained by using clandesti ne listening devices or by intercepting private telephone conversations."

The crucial question, then, is: what constitutes "the public interest"? Paragraph 18 says "Clauses 4 (privacy), 5, 7, 8 (harassment), and 9 (payment for articles) create exceptions which may be covered by invoking the public interest. For the purpose of this code that is most easily defined as: (i) detecting or exposing crime or a serious misdemeanour; (ii) protecting public health and safety; (iii) preventing the public from being misled by some statement or action of an individual or organisation." It adds: "In any case raising issues beyond these three definitions, the Press Complaints Commission will require a full explanation by the editor of the publication involved, seeking to demonstrate how the public interest was served."

This was no new fangled or self-serving exception devised by the press. Similar provisions were adopted in the Calcutt Committee's Report (1990) on Privacy in almost identical language (cm. 1102; The Stationery Office, London; 1990; p. 122, para 6). It w as set up by the British Government. It is a mark of illiteracy that the exposed now cry "fictitious company's fictitious deal". It was admittedly a subterfuge devised to expose a rotten state of affairs.

Para 7 of the Code was applied in The Sunday Times Case in 1994. On July 10, 1994, the paper published a story under the headline "Revealed: MPs who accept &pound1,000 to ask a parliamentary question". Within hours, two Conservative MPs, David Tre dinnick and Graham Riddick, were suspended from their jobs as parliamentary private secretaries. In the debate in the House of Commons on July 13, some MPs were more keen on attacking the newspaper rather than the offenders it had exposed. Their cry had a familiar ring ("the so-called guardians of the public interest").

Stung by the criticism, The Sunday Times revealed on July 17 the details of its investigative work over six months, following a tip at a lunch in January by a leading businessman that he had paid MPs to table parliamentary questions. Records of th ousands of questions were sifted. "A pattern began to emerge, several MPs known to have links with some of the 50 consultancy firms that hover around Westminster were asking questions of direct interest to the companies those firms lobbied for." (The teh elka.com tapes also reveal "a pattern"; far more grim and dangerous).

It was decided to test 10 Tory and 10 Labour MPs. All the Labour MPs refused. Two of the Tories were caught red-handed by a member of the paper's Insight team, Jonathan Calvert. Using his real name, he posed as a potential investor in a drugs company tha t was developing a cure for a throat infection called "Thising's Disease". The firm's name Githins was also an anagram of Insight. This was done to demonstrate how easy it was to table bogus questions.

On July 17 - note the despatch - the Press Complaints Commission gave its ruling. The full text is reproduced below as set out in Appendix 9 of the Report of the House of Commons Committee of Privileges First Report, Volume 2; p. 173.

"On 11 July 1994 Mr. Graham Riddick, MP for Colne Valley, complained to the Press Complaints Commission that information contained in an article in The Sunday Times of 10 July headlined "Revealed: MPs who accept &pound1,000 to ask a parliamentary question" was unfairly obtained through subterfuge. He maintained that such information was readily available elsewhere and raised his complaint under Clauses 7(i), 7(iii) and 18 of the Code of Practice.

"The article described how a journalist posed as an investor interested in buying a firm. He offered the complainant &pound1,000 to table a question in the House of Commons to the Secretary of State for Social Security about any work done by the firm (th e name of which had been invented) for the Department.

"Mr. Riddick has since told the Commission that as the House of Commons has established a Committee of Privileges to consider issues relating to this matter he does not wish to proceed with his complaint.

"The Commission is the appropriate body to decide whether The Sunday Times has breached the PCC's Code of Practice and it sees no conflict with the role of the Committee of Privileges in so doing. The Speaker of the House of Commons has informed the Comm ission that she does not see any conflict between an adjudication by the Commission based on the provisions of the Code and any investigation by the Committee of Privileges.

"The Commission has the power, of its own motion, to raise or continue the investigation of any alleged breach of the Code and it considers that Mr. Riddick's complaint raises an important question of public interest on which it ought to adjudicate.

"The Sunday Times told the Commission that they undertook this investigation after being told by a prominent businessman that it was common practice for MPs to be paid to table question in Parliament and the "going rate was &pound1,000". The newspaper's receipt of this information coincided with rumours which they had picked up in the House of Commons that MPs were being paid for putting down questions. The newspaper believed that an investigation into these matters was in the public interest and consid ered that a debate about the question of payment of MPs and their consultancies was timely. The propriety of any such payment seemed to the newspaper to be unclear. Erskine May's Parliamentary Practice indicates that the receipt of payment by MPs for tabling questions may be a breach of privilege yet payment appears to be permissible if MPs record any financial relationship with outside parties within a set period. An examination by the newspaper of thousands of parliamentary questions appeared t o confirm their suspicions but not to offer exact proof. The newspaper contended that the use of subterfuge was the only method by which the matter could be investigated.

"The Commission accepts the newspaper's explanation for their behaviour. The subject matter of the article raised issues of serious public interest which the newspaper had a right to pursue. In all the circumstances of this case, the Comm-ission consider s that the subterfuge used was justified as the only effective investigative tool available by which the information concerned could be obtained."

One has only to read the Code and the ruling to realise the full justification of tehelka.com's exposure. "We have to employ desperate solutions for desperate situations," its editor Tarun Tejpal rightly claimed (The Times of India, March 16).

Everyone knew that for decades defence purchases by the Governments of India were a scandal. Even Izvestia of December 16, 1995 reported the scandalous state of affairs which was known the world over. New Delhi was a den of sleaze. It had to be exposed. But far more relevant is Tejpal's query: "Though we blew the whistle, who will police this matter?" Who indeed?