By Jamila Yesho
Clause 7 codifies the principle of transparency in newsgathering. Subterfuge is exempted only where it satisfies a strict proportionality test. Investigative/undercover media practice is ethical and defensible only where the information sought could not reasonably be obtained by any other means and where the public interest is compelling. Clause 7, read together with Clause 16 on privacy, makes clear that transparency is the rule and deception the narrowly construed exception.
As seen inMCC Case No. 5 of 2021, Article 48 Initiative vs. Standard Media Group, the Complaints Commission scrutinized the use of subterfuge to access online meetings, reinforcing that unauthorized access requires a heavy public interest burden. The Commission dismissed the complaint, ruling that the Standard Media Group did not violate the Code of Conduct. The Commission held the stories published were of significant public interest, which provided the moral authority to override technical privacy concerns.
Clauses 8 and 9 provide for editorial independence as an obligation, content must be free from undue influence by advertisers, owners, political actors, or other powerful interests. Conflicts of interest, whether arising from gifts, sponsored travel, advertising relationships, or external political activity, must be declared and managed. “Brown envelopes” are more than an ethical lapse; it is viewed as a breach of the social contract between the press and the public. This further reinforced by Clause 12, which places legal responsibility squarely on the editor or person in charge of content. The “captain of the ship” doctrine applies, the editor’s word is final, and so is the editor’s liability.
Clauses 10 and 15 anchor ethical media practice in the principle of human dignity. Publishing images of grieving families or intruding into moments of personal tragedy, has been ruled a violation of privacy rather than an exercise of media freedom.
Clause 11 requires a seven-second delay in live broadcasts appears technical, but its legal implications are profound. The absence of such a delay mechanism is evidence of negligence, particularly where harmful or unlawful material is aired. When read alongside Clause 12, the Code effectively establishes a strict liability regime for editors and broadcasters. If content is aired, it is deemed published, regardless of whether it was pre-approved or uttered spontaneously by a guest. Editorial control is not optional; it is a legal obligation.
Clause 16 is perhaps the most litigated provision, as it governs privacy, data protection, and source confidentiality. Significantly, the Code places the burden of proof on the journalist, media practitioner or media enterprise to demonstrate that the public interest outweighed an individual’s right to privacy. Privacy is treated as the default position, with public interest operating as a justified exception that must be affirmatively proven. While the Code recognises the importance of source protection, courts weigh the public interest in confidentiality against competing interests, such as the administration of justice. In cases where disclosure of a source is necessary to prevent a miscarriage of justice, courts can override journalistic anonymity, illustrating that source protection, while vital, is not absolute.
Finally, Clause 17 prohibits paying for information. Payment introduces incentives for exaggeration or fabrication and undermines the credibility of both the journalist and the information itself. Even where public interest is invoked, the Code demands transparency, justification, and editorial approval, reinforcing that credibility is as much a legal concern as an ethical one.
Before going undercover or overriding privacy, you must be able to answer affirmatively the following questions;
- Necessity: Have we exhausted all open-source methods before resorting to subterfuge?
- Dignity: Have we respected the privacy of those in grief?
- Independence: Is this story free from any capture?
- Safeguards: Is our 7-second live delay active?
- Evidence: If we are overriding privacy, do we have a documented “Public Interest” justification?
Jamila Yesho is acting deputy registrar of the Media Complaints Commission
