Free Speech and

Investigative Journalism:
Are ‘Sting’ Operations Justified?

Dr Venkat Iyer
BSc (Hons), LLB, LLM, PhD, Barrister

University of Ulster (UK)

Introduction: the
importance of free media
 Intimate connection with high value
attached to freedom of speech in all liberal
societies
- to facilitate the discovery of truth;
- to promote individual self-fulfilment;
- to encourage citizen participation in the political process.
 As an aid to democracy – allowing voters
to make informed choices
 Making government and public bodies
accountable – the watchdog function
 Setting the agenda for social reform
Managing free speech
 Should free speech be absolute?
 If not, to what extent can it be
restricted?
 Constitutional position in India:
- ‘reasonable’ restrictions
- for specified purposes
- to be imposed by ‘law’
Managing free speech
(contd)
 European Convention approach:
- ‘necessary in a democratic society’
- ‘proportional’ (reasonable relationship
between objective to be achieved and
means adopted to achieve it)
- ‘margin of appreciation’
 Relevance to India
Ethical aspects of
investigative journalism
 What is legal is not necessarily
ethical
 Need for media responsibility and
self-regulation
 Need for high standards of
journalism, including unassailable
research
Sting operations
 Usually, a deceptive operation aimed
at exposing crime or other
unacceptable behaviour
 Should not amount to ‘entrapment’
– i.e. provoking an otherwise law-
abiding person to commit a crime
Subterfuge
 Is subterfuge justified at all times?
 The Pentagon Papers case (1971)
 The Clive Ponting case (1985)
 The Tehelka case (2001)
 The Radia conversations (2010)
 Risks of unjustified use of subterfuge
– more stringent statutory regulation
Public interest
 ‘What is interesting to the public is not
necessarily in the public interest’
 The risks of sensationalism/voyeurism
 Acceptable ends:
- detection/exposure of crime or serious
misdemeanour;
- protecting public health or safety;
- preventing the public from being misled by
some statement or action of
individuals/organisations
Public interest defence
 Onus on publisher
 Need for clear demonstration of how
the public interest would be served
by publication
Other safeguards
 Exhaustion of internal remedies
 Proportionality
 Use of sober language in reportage
 Absence of mala fides (cf. Uma Khurana
case, 2007)
 Co-operation with authorities, post
exposure
 Avoidance of damage to the interests of
innocent parties