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BBC wins "purposes of journalism" FOI case

15 February 2012

An internal report for the BBC into impartiality of journalistic coverage is not disclosable under freedom of information laws, the UK Supreme Court ruled today.

Justices held that the restriction in the legislation, under which the BBC is subject to freedom of information only "in respect of information held for purposes other than those of journalism, art or literature", meant that once it was established that the information sought was held by the BBC to any significant degree for the purposes of journalism, it was exempt from production under FOIA, even if the information was also held for other purposes.

The dispute centred round a report known as the Balen Report, commissioned in 2003 after pressure groups had complained that BBC coverage of the Israeli-Palestinian conflict was not impartial.  The report ultimately led to a number of internal changes, including development of training, auditing of on-air use of experts, and the creation of a post of Middle East editor.

The report was sought by Steven Sugar, who died before the final hearing but whose case was carried on by his widow, Fiona Paveley. She argued that the exemption only applied to information held solely for journalistic purposes. However the court ruled that the purpose of the designation, to protect the BBC from interference with its functions in broadcasting journalism, art and literature, would have failed if the coexistence of other non-journalistic purposes resulted in the loss of immunity. A purposive construction should be applied to prevent disclosure that
would risk such interference, though information should be found to be held for the purposes of journalism, art or
literature only if an immediate object of holding the information was to use it for one of those purposes.

An argument that this approach would violate the applicant's rights under article 10 of the European Convention (freedom of expression) failed: article 10 prohibited a government from restricting a person from receiving information that others were willing to impart to him, but did not impose positive obligations on a state to disseminate information of its own motion, and created no general right to freedom of information.

Click here to access the judgments.

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