14th November 2014
By Stefanie Chernow

The Ethics of Undercover Journalism: Where the Police and Journalists Divide

Stefanie Chernow

Journalism in the public interest can be a dodgy business. Sometimes, when all else fails, to get their story reporters may have to use undercover techniques. They may even have to break the law. This week, on both sides of the Atlantic, two stories about the controversial use of subterfuge illustrate the thorny ethical issues at stake for journalists.

In the United States, the Associated Press issued a stinging rebuke of the FBI when it was recently reported that an FBI agent impersonated an Associated Press journalists in 2007 with the goal of entrapping a suspect who made bomb threats.

The objective was to have the suspect click on a fake news link, at which point the FBI could upload software into the suspect’s computer. Through this undercover work, they were able to track the location and arrest the juvenile.

The Associated Press is understandably outraged. “In stealing our identity, the FBI tarnishes [AP’s] reputation, belittles the value of the free press rights enshrined in our Constitution and endangers AP journalists and other newsgatherers around the world,”AP President and CEO Gary Pruitt wrote in an open letter. “This deception corrodes the most fundamental tenet of a free press – our independence from government control and corollary responsibility to hold government accountable.”

He’s right, of course, but so is James Comly, The Director of the FBI,who defended the acts of the investigation. “That technique was proper and appropriate under Justice Department and F.B.I. guidelines at the time. Today, the use of such an unusual technique would probably require higher level approvals than in 2007, but it would still be lawful and, in a rare case, appropriate.”

Both sides argue passionately in defence of the public interest. Sometimes, whether it is for crime fighting, or for exposing corruption, when all other lines of inquiry have failed, it may be necessary to use subterfuge. But the cases in which this is truly justified are rare.

On the other hand there is the case, in London, of the “Fake Sheikh” which highlights the dangers of subterfuge without an ethical base to justify the means of deception. Reporter Mazher Mahmood would go undercover as Arab royalty for the purpose of setting up people to commit criminal acts and then wrote about the fallout in News Of The World. This is seen by many as simply entrapment; a journalist encouraging someone to break the law for the purposes of securing a story.

In one instance, Mahmoud in a bogus operation offered former Page 3 girl Emma Morgan a contract for a Middle East bikini calendar, but in fact it was a sting. He wanted to expose her as a drug dealer, so he hired a man to pressure Morgan to supply cocaine, and she fell victim to the operation.

“I was a fool, I was naive; to be foolish isn’t a crime, to be naive isn’t a crime, to do what he did is criminal,” said Morgan. “I haven’t had the career I should have had, I haven’t had the life I should have had. He’s a horrible, horrible man.”

Too often “infotainment” masks itself as hard-hitting news. Yet when undercover reporting lacks a genuine public interest it can ruin lives. Often the objective is simply sensationalism with the aim of selling more newspapers. But it is a shameful abuse of journalism; it damages public trust and undermines ethical journalists working hard to earn an honest living.

Clearly the use of subterfuge by journalists is controversial, but sometimes it is unavoidable. Getting into a country where the government is covering up human rights abuse or fighting a secret war sometimes means a reporter has to pretend to be someone else, usually a tourist, to avoid visa bans on media.

More directly, sometimes a journalist may pretend to be someone else – a public official or an interested party – to overcome state control of access to official information or to areas cordoned off from public view.

In South Africa, during the years of Apartheid, some courageous journalists secretly and illegally recorded meetings of army officers of the white regime, or pretended to be white racists to attend private political events to get access to vital information about the war against the black liberation movement.

Even journalists have been stung by other journalists using subterfuge. Some years ago in Germany the journalists of the tabloid Bild Zeitung were furious when investigative reporter Gunther Walraff, a specialist in cloak-and-dagger journalism, went undercover and joined their news staff just to expose the paper’s questionable journalistic techniques.

Sometimes, it might be appropriate for journalists and media to co-operate in law enforcement actions. But this may only be possible if journalists and media are consulted and their assistance is requested before their good name and reputation is used by others. Would the AP have agreed to allow the FBI to pretend to be on their staff in 2007? Probably not, but they should have been asked.

Journalists in their own careers are faced with many similar ethical dilemmas, in that undercover reporting can potentially coax out more information of a source.Certain journalists even mourn that undercover reporting has gone out of style.

All reputable news media – including the AP– agree that journalists should inform their sources of their real identity and avoid deceit in their reporting. In The Society of Professional Journalists Codes of Ethics, it states “Avoid undercover or other surreptitious methods of gathering information unless traditional, open methods will not yield information vital to the public.”

News is based on trust – which in the current media ecosystem is rare, fragile, and must be preserved for the future of journalism to thrive. The failure of the FBI to consult with AP is unconscionable; it shows a profound lack of respect for journalism. It also reveals an imbalance between law enforcement and journalism – had a journalist been impersonating an FBI officer, he or she could be prosecuted and face up to three years in jail.

Whenever subterfuge is used, journalists and media, like law-enforcement officials, have a responsibility to disclose how and why they used it and to justify their actions. In the end it is the audience that must decide whether the action was appropriate, but in order to do that, they have to be informed that it has happened in the first place.

Photo source: FlickR CC David Goehring

Sign up for the Ethical Journalism Network’s newsletter to get weekly updates on ethical news.