‘Yes journalists have broken the law, and we should be pleased and proud that they did’

Andy Coulson’s jail sentence gave the tabloid-bashing lobby a welcome opportunity to pose on the high ground once more, after the humiliation of seeing only one defendant convicted at the end of their £100m [according to The Guardian and others] hacking trial [plus the five who pleaded guilty].

Keir Starmer, the former Director of Public Prosecutions behind the hacking case, smugly declared that the trials had been worth it because they had dispelled the “feeling that journalists were above the law”.

Never mind the Crown’s abject failure to prove that former Sun and News of the World editor Rebekah Brooks and others were involved in any “criminal conspiracy”. The message is that tabloid journalism has now been found guilty, and needs to be punished and restrained.

To which a response might be: yes, journalists have often used underhand methods and sometimes broken the law. And in the long view we should be pleased and proud that they did. Of course nobody wants to defend the hacking of crime victims’ phones by the News of the World. But some important historical truths have been forgotten amid the hacking furore.

1. Without law-breaking, there would be no press freedom in the first place

Soon after the first printing press was introduced to England, press freedom was declared against the law. From 1529 nothing could be published without the approval of the Crown’s Star Chamber. State licensing of the press continued through much of the sixteenth and seventeenth centuries. Those who dared to defy the state censors risked imprisonment, mutilation and death. As late as 1663 a printer was hanged, drawn and quartered for publishing the unlicensed suggestion that King Charles II should be accountable to his subjects.

After a long struggle state licensing of the press finally ended in 1695. In 1712 the government imposed a stamp tax on newspapers, to make them too expensive for working class people to read. A century later, as the mass movement for democracy grew in Britain, the stamp tax was extended to publications carrying opinion – political ideas – as well as news. Those who refused to pay this “tax on knowledge” faced prison not only for editing or printing cheap newspapers for the masses, but even for selling them on the street. Stamp taxes on newspapers did not end until 1855.

2. The heroes of the historic struggle for press freedom were unethical criminals

A brief mention of two favourite trouble-makers. In the eighteenth century John Wilkes – writer, printer, MP, lord mayor of London and all-round scoundrel – led the fight for the right of the fledgling press to criticise the government and report what went on in parliament. For his pains he was jailed, sent to the Tower, declared an outlaw and barred from taking his seat in the Commons. In 1771, 50,000 Londoners crying "Wilkes and liberty!" besieged parliament and almost lynched the prime minister in support of press freedom. Yet the publications that Wilkes made causes celebre would hardly have qualified as ‘ethical public interest journalism’ for today’s media snobs. He was found guilty of ‘seditious libel’ for publishing a scurrilous journal that repeatedly alleged that the prime minister was intimate with the king’s mother. Wilkes was also condemned for ‘obscene libel’ for printing pornographic poetry.

In the nineteenth century WT Stead – spiritualist crank and Puritan rascal – helped to invent the sensationalist style now called tabloid journalism. In 1885 Stead’s Pall Mall Gazette launched an investigation into child prostitution in London, backed by the Social Purity Movement. His series of dramatic reports – "The Violation of Virgins", "Confessions of a Brothel-keeper" and "A Girl of 13 Bought for £5" – caused a national furore. Stead cut corners, fudged the facts – and broke the law. He personally posed as a ‘procurer’ to buy that 13-year old girl from her allegedly alcoholic mother for a fiver. Never mind a ‘fake sheikh’, Stead acted as a pseudo-paedo. For his pains he was sentenced to three months in jail. The political uproar he caused led parliament to raise the age of consent to 16.

3. Underhand does not mean beneath contempt

The phone-hacking scandal has become the pretext for condemning investigative reporting methods. Anything underhand can now be branded unethical if not illegal, from ‘blagging’ information or paying for it to going through bin bags or making secret recordings. This will spell the end of proper investigative journalism – already an endangered species.

Investigative journalism is about trying to elicit information that others, often in a position of power, do not want made public. That necessarily involves using underhand methods. In deciding whether these are justified, each case must be weighed on its merits and journalists and editors allowed to make judgement calls. Even the chief investigator at the Guardian admitted at the Leveson Inquiry that he had hacked phones – for ‘ethical reasons’, of course.

Lord Justice Leveson’s report proposed tightening the law further to restrict investigative journalism. New laws against paying whistleblowers and the fall-out from the hacking scandal have all-but ended informal contacts between the press, the police and public officials. We are entering what one editor calls ‘an ice age’ for investigative journalism. If underhand reporting is frozen out, it would give the authorities a lovely warm feeling.

4. All the great modern news stories broke the rules – and often the law

Take the Sunday Times’s Thalidomide campaign, often cited as setting the British benchmark for investigative journalism. Given to pregnant women, the drug Thalidomide caused serious deformities in some babies. In the early 1970s the Sunday Times fought a long battle to expose the truth of the scandal and demand justice for the Thalidomide children. A decisive factor was the £8,000 which the paper’s editor, Harry Evans, paid an informant for confidential documentary dirt on the drug company, Distillers. Even back then this was sneered at as ‘chequebook journalism’, and the Sunday Times had to fight through the highest courts in the UK and Europe to publish the leaked information. Today it would be harder still, since the Bribery Act 2010 makes it illegal to pay whistleblowers for information. That law would also make it illegal now for the Daily Telegraph to pay for the information that exposed the MPs’ expenses scandal. What price the Thalidomide expose today?

Even the international gold standard of investigative reporting – the pursuit of the Watergate scandal by the Washington Post’s Bob Woodward and Carl Bernstein, which eventually brought down US president Richard Nixon in 1974 – was not quite as squeaky clean as some ethical purists like to claim. A couple of years ago a memo came to light, written by Bernstein, summarising his conversation with a member of the Watergate grand jury. The reporters had always denied that they illegally obtained crucial information from a grand juror – unsurprisingly, since Judge John Sirica has made clear that he would have sent Woodward and Bernstein to jail "had they actually obtained information from that grand juror". Which, in fact, it appears that they did, risking jail to expose corruption in the White House.

5. Why should police and prosecutors decide the ‘public interest’?

Even former DPP head Starmer allowed that reporters should not always necessarily be prosecuted for infringing the law "because journalists do serve the public interest and that has to be preserved".

Fair enough. The key question remains, who is to decide what might be in the public interest? One of the most extraordinary episodes at the Leveson Inquiry came when Deputy Assistant Commissioner Sue Akers of the Metropolitan Police baldly declared that there was a "culture of criminality" at the Sun, where tabloid journalists had not just used dubious methods but had done so to get "stories which I would describe as salacious gossip, not what I would describe as being remotely in the public interest". The notion of a top cop declaring a newspaper guilty without trial, and issuing guidelines on what sort of news is fit for the press to investigate is not one we might normally associate with a healthy democracy.

The only people in a position to decide what might be in the public interest to publish or broadcast are the public themselves. Journalists and editors should be free to make judgement calls, publish, and be damned by their audience. The overwhelming public interest lies in defending the freedom of the press, not allowing the law to dictate how journalists should use – or abuse – that precious liberty.

Of course journalists are "not above the law". But neither should they be subject to special prosecution and persecution, as has happened in the UK over the past three years with the arrest of more than 60 tabloid journalists. Strangely, few of those high-minded media types at the BBC or Channel 4 news now protesting about the jailing of journalists in Egypt have offered a peep of protest about the criminalisation of tabloid journalism in Britain – and not because anybody has taped over their mouths.