Public interest journalism overrides penal laws

APOLLO MBOYA} press freedom

Journalists in practice hold themselves out as promoting public interest by reliably and accurately informing citizens about the most crucial issues that directly affect their lives.

As for the private media business, the focus is on the bottom line (and profits) and less on public interest. Journalists face corporate pressure from media owners, advertisers and shareholders because the owners want to make money while the journalists want to keep their jobs.

Kenya Information and Communication Amendment (KICA) Act 2013 has brought to fore the dichotomy of interest. The punitive fines to media houses and how to administer content, formulate standards, regulate and monitor compliance by the Broadcasting Standards Committee is what really concerns media houses.

KEEPING SECRETS

As for the individual journalist the threat of fines, suspension and deregistration is what is horrifying especially for investigative journalists. The tension between press and government about keeping secrets is heightened by the knowledge that classification goes far beyond real need, activated more by fear of personal embarrassment than a threat to national security.

It is no secret that the government classifies too much information. The battle between secrecy and disclosure has generated periodic clashes over leaks and confidential sources. It is very unhealthy to have a situation where a journalist need to go to their lawyer before they pursue any lead or asked any question.

KEYHOLE VIEW

It is without doubt that in the course of journalism, journalists will rub up against the criminal law and that is why, we need an approach that assesses whether the public interest in what the journalist was trying to achieve outweighed the overall criminality for example, when peeking through a keyhole or whipping out a camera phone is justified in the conflict between private sphere and public service.

Since privacy is becoming commoditised, those wielding power are increasingly selling off selected parts of their private life through a complaisant media while protecting other parts through the courts. This requires guidelines specifically to allow journalists to pursue difficult stories without fear of prosecution, so long as a public interest threshold had been reached.

Potentially, there are many offences that journalists could commit in the course of their work that requires guidelines to offer them protection a greater good. First we must search to see if an offence has been committed; if not, that’s obviously the end of it. Secondly if an offence has been committed, we must ask whether the public interest in what the journalist was trying to achieve outweigh the overall criminality, taking into account the nature of the lead, how much information there was, what they were trying to uncover.

Restrictions on resources, scarcity of time due to the increasing speed of the news cycle and perceived public indifference are more significant obstacles to investigative journalism than concerns over privacy. Journalists should apply an “impact test,” asking whether they are exposing issues which have the potential to impact the lives of a number of people rather than simply being interesting to the prurient.

Defining “public interest” is always very, very difficult. For most issues it’s fairly clear what is and what is not in the public interest; for some it’s more complicated, particularly where privacy is concerned.

The first task, however, is to separate what is in the public interest from those things members of the public are interested in; they are not necessarily the same. The fact that the public may be interested in something has nothing to do with whether it is in the public interest which is “the “common well-being” or “general welfare”.

The public interest is in having a safe, healthy and fully-functioning society. Public-interest journalism has two elements. The first is as a watchdog, holding the powerful to account, exposing fraud, deceit, corruption, mismanagement and incompetence. The second element of public-interest journalism is the responsibility to inform, explain and analyse.

Sometimes a journalist might have to “go underground” to uncover serious crimes. This is an act of deception, which is generally to be avoided, but, if it brings justice and an end to criminal activity, it may be justified in the wider public interest.

SAFEGUARDS

Kenya has built public interest into its legal regime through the enactment of the Witness Protection Act of 2006 which gives legal protection to whistle blowers and their families through the Witness Protection Agency. These legal safeguards in essence balance public and individual interest in favour of the former.

With enactment of the Kenya Information and Communication Amendment (KICA) Act 2013, what constitutes public interest will have to be litigated for clarity to facilitate the continued central role journalism plays in a democratic society.

In a democracy, journalism plays a central role in providing the information needed to take part in the democratic process. Freedom of press therefore implies freedom to use information from confidential sources for the purposes of holding governments and other institutions into account.

The writer is Secretary/CEO of the Law Society of Kenya

mboya@lsk.or.ke