Clauses Noted: 10
Publication: The Independent
Bell Pottinger Group complained to the Press Complaints Commission through Carter-Ruck solicitors that a series of articles published in The Independent on 6, 7, 8 and 9 December 2011 contained information that had been obtained using subterfuge in breach of Clause 10 (Clandestine devices and subterfuge) of the Editors' Code of Practice.
The complaint was not upheld.
The coverage reported comments made by Bell Pottinger executives at two meetings that had been secretly recorded by undercover journalists from the Bureau of Investigative Journalism (BIJ), who were posing as representatives of the Uzbek cotton industry. The articles were illustrated with still images of the meetings, and extracts of the footage were published on the newspaper's website.
The complainants said that neither the use of subterfuge nor the publication of the material was justified by a sufficient public interest. In addition, the subterfuge had been unnecessary: the BIJ could have openly inquired of the complainants under what circumstances they would have been prepared to advise the government of Uzbekistan on a public relations strategy, and what advice they would offer. Unaware of the subterfuge, the complainants had offered to meet BIJ staff to discuss the story in November 2011, but this offer had been declined.
The complainants argued that they had been the victims of entrapment. Contrary to the tone of the coverage, they had not been presented with a proposition that it would have been improper for them to undertake. If, as they had been led to believe, their prospective "clients" were willing to make a genuine commitment to reform, it would be in the public interest for the complainants to assist them; further, it might be expected that the British government would be willing to encourage and assist this. The coverage had downplayed the emphasis that had been placed by staff members throughout the conversations on the need for a genuine commitment to reform: had it not been for the claims that Uzbekistan was committed to reform, the meetings would not have taken place. The manner in which the material had been presented - including the publication of the footage - had sensationalised the story, and created a misleading impression that wrongdoing had been exposed. The relationships between firms and their clients (and prospective clients), like those between MPs and constituents, were based on trust; it was unsurprising that this would lead to indiscreet comments. Although embarrassing, this was not in itself improper.
The newspaper said that the decisions to employ clandestine methods and to publish the resulting material had each been justified by the strong public interest in the story. The newspaper had been presented with the story after the undercover meetings between the BIJ and the complainants. Nonetheless, it accepted full editorial responsibility for the piece.
The newspaper explained that the BIJ had decided in early 2011 to explore the possibility of investigating the lobbying industry. David Cameron had predicted, while Leader of the Opposition, that lobbying was "the next big scandal waiting to happen" and had called for greater transparency, so that the political community could "come clean about who is buying power and influence". Despite indications that a Conservative government would introduce a mandatory register of lobbyists, no measures to regulate the industry had been brought forward by the Coalition Government in its first year. The BIJ decided to examine whether work by leading firms for "unsavoury" clients, such as foreign governments with poor human rights records, had the potential to "taint" UK politics (a phrase Mr Cameron had used in his speech).
As a first step, the BIJ had collated publicly-available information about the activities of London-based lobbying and PR firms and had discussed the issue with Amnesty International and other human rights organisations, who were critical of PR firms who worked for regimes with poor human rights records. Among these was Bell Pottinger, which had evidently worked for Belarus and Sri Lanka.
The newspaper said the BIJ had then met four senior PR executives, none of whom was prepared to speak on the record. The first source - who had worked for a number of firms, including Bell Pottinger - claimed that Bell Pottinger would "never" admit to "dirty tricks" it allegedly used, such as ghost writing speeches and news copy and manipulating the web in its clients' favour. The source expressed doubt that anyone would be prepared to "blow the whistle" publicly on such techniques. The second source was a senior contact at Chime Communications (Bell Pottinger's parent group) who was highly critical of Bell Pottinger's ethics and the style of its senior management. In common with the first source, he or she said that Bell Pottinger made a point of employing individuals with strong links to serving politicians. A third interview was conducted with a current employee of Bell Pottinger who provided details about the individuals likely to work on foreign government projects and the methods they employed. This source was adamant that Bell Pottinger would never go into detail publicly about its controversial techniques. Finally the BIJ met with a PR specialist who had never worked for Bell Pottinger but who claimed the firm had a particularly bad reputation in the industry for its ethics and conduct and suggested that the only way the BIJ was likely to learn how PR firms were prepared to operate in this area was to "pretend to be someone nasty".
The newspaper said that following a discussion by the BIJ's editorial advisory board and conversations between the Editor and Deputy Editor of the BIJ, the BIJ decided in late April 2011 that it had sufficient grounds for engaging in subterfuge.
Posing as representatives of the Uzbek cotton industry - because the country had a "truly awful" human rights record that allegedly included the use of child labour in its cotton harvest - BIJ staff had approached ten companies that had represented countries whose records on human rights or corruption had been criticised by human rights and transparency organisations. Of these, five firms - including Bell Pottinger - had indicated that they might be prepared to work with the "clients" and had been filmed. The newspaper had published material from the meetings with the complainants and, to a lesser extent, two other firms. It had not published material obtained from the remaining two firms.
At two meetings in late November - one attended by the newspaper's Editor - BIJ staff and the newspaper's executives had discussed why subterfuge had been necessary and reviewed the transcripts of the meetings. The newspaper had then decided to proceed with publication. It was strongly of the view that Britain's electorate had a right to know about the firm's claims to links with those in power, and its evident willingness to work with a regime that, even if some reforms were put in place, would remain "brutal". The general public would be unaware of the techniques discussed - including anonymously editing Wikipedia pages and altering search results - and could be misled by them. While such methods might be generally accepted for some purposes, using them to replace negative search results about the Uzbek government and an industry that uses child labour with positive results for "balance" was "morally abhorrent".
The newspaper said the coverage had made clear that the complainants had informed the potential "clients" that Uzbekistan would have to be committed to reform for the firm's work to be effective, although they had offered reassurances that the change could be gradual. It denied that the relationship between the complainants and potential clients was deserving of
The complainants did not accept that the claims attributed to the BIJ's sources justified the decision to engage in subterfuge. It was natural that in speaking to prospective clients, consultants would outline their experience of dealing with politicians and the media. Equally, it was neither unusual nor unethical for a lobbyist to identify individuals who were likely to be interested in relevant issues. It was unsurprising that those seeking advice from a public relations firm would include those who were concerned about public perceptions of them. The "media manipulation" referred to pejoratively by the newspaper was generally known by the neutral term "search engine optimisation" (SEO). It was a highly technical process, which would be unfamiliar to some - thus the term "dark arts", used by one of the complainants during one of the meetings - but the methodology was well-known to website developers and advertisers, among others. It was not a means of interfering with other websites but merely meant the visibility of information posted on a particular website would be enhanced.
The complainants said that the newspaper had used "retrospective justification" for the initial decision to employ subterfuge and for its decision to publish. They were seriously concerned that the newspaper had not produced contemporaneous evidence documenting its editorial process.
Under Clause 10 of the Editors' Code of Practice, "the press must not seek to obtain or publish material acquired by using hidden cameras or clandestine listening devices". The newspaper's actions plainly amounted to a prima facie breach of the Code, which it had sought to defend on public interest grounds.
The Commission has generally distinguished between the decision to engage in clandestine methods and the decision to publish the resulting material. In this instance, the initial decision had not been taken by the newspaper. By publishing the material, however, it had assumed responsibility for the editorial processes employed by the BIJ. The questions for the Commission therefore remained: Were the journalists acting on a reasonable expectation that the public interest would be served by their use of subterfuge and clandestine recording devices? Was there a sufficient public interest to justify publication of the material obtained through these methods? Could the material have been obtained through other means?
Under the terms of the Code, "whenever the public interest is invoked, the PCC will require editors to demonstrate fully that they reasonably believed that publication, or journalistic activity undertaken with a view to publication, would be in the public interest and how, and with whom, that was established at the time". As the comments by Mr Cameron suggested, there was a broad public interest in exploring the relationship between lobbying and politics. The BIJ had targeted the complainants because of off-the-record claims by its sources and information in the public domain about work the firm had undertaken for regimes that had been criticised for human rights abuses.
The Commission acknowledged the complainants' strong concerns that the newspaper had not provided documentary evidence to support its claims about the editorial processes followed in the course of the investigation. It had, however, provided an explanation of the BIJ's decision to target the complainants' firm and a chronology of the decision-making and noted who had taken part in the critical decisions.
The decision to use subterfuge should always be made on the basis of evidence, rather than speculation. It appeared from the transcripts of the meetings and the correspondence from both parties that the journalists had engaged in subterfuge on this occasion with the aim of investigating various claims that had been made about the activities of Bell Pottinger and other public relations firms, rather than as a means of confirming a specific hypothesis about Bell Pottinger in particular. It was a fine judgment, but on balance - and on the basis of the evidence that had been provided to it by the newspaper in relation to Bell Pottinger specifically - the Commission decided that the means employed by the journalists had been appropriately tailored to explore the allegations made by confidential sources about the firm's activities, which raised issues of significant public interest. This was not a "fishing expedition".
The decision to publish the material - including extracts of the footage on its website - was also significant. The "public interest" section of the Code sets out that the public interest "includes, but is not confined to: detecting or exposing crime or serious impropriety; protecting public health and safety; [and] preventing the public from being misled..". The Commission noted the complainants' position that the investigation had exposed no "crime or serious impropriety", but it emphasised that the Code definition is not exhaustive. It agreed with the complainants that such intrusive methods could not be justified by revealing material that was merely "embarrassing". The material published on this occasion, however, was more than just embarrassing: it provided significant insight into the means employed by lobbyists to assist such clients, including the network of political contacts that would assist this process. While these practices might be familiar to professionals in the public relations industry and related fields, the public interest was served by subjecting them to wider scrutiny and comment, particularly at a time when the possibility of imposing greater regulation on the industry was being debated.
The complainants had argued that subterfuge had been unnecessary and provided correspondence - most of it from a period in which they remained unaware of the deception that had taken place - that demonstrated their willingness to engage, to some extent, with the journalists. During the meetings, however, the complainants themselves had said that some details of their work were too "embarrassing" to include in a written presentation. The Commission could not accept that the complainants would have provided detailed information about such techniques to the BIJ and the public interest in the story lay largely in the precise information it included about the techniques used by the complainants and their relationships with political figures.
The complaint was not upheld.
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