The long arm of the bribery law

Wednesday 20 July 2011, 12:23

Kevin Steele Kevin Steele is a freelance media law trainer

What happens when you, as a journalist, are covering a foreign story and need to make arrangements to gain access to a local official/politician/location or similar?

In many parts of the world it is normal practice to engage a local 'fixer', someone familiar with the local environment or administrative set-up, to use their contacts and local knowledge to ease your path.

Clearly, if somebody provides that service for you it is only right that you pay a reasonable fee for it.

No problem so far.

But what happens when your fixer says they can make the local bureaucratic wheels turn faster - and you can meet your deadline - if they make a payment or other 'consideration' of some kind to a third party who is in a position to expedite your request.

It is in situations like this that a journalist, and their employer, can fall foul of the new UK Bribery Act.

Although aimed primarily at UK companies bidding for contracts or other business abroad, the provisions of the Act can also affect the activities of UK journalists - even if they are working outside the UK.

It can also apply to non-UK journalists from foreign media organisations which have a presence of some kind in the UK - such as a London bureau. So it is quite wide-ranging.

The 2010 Bribery Act came into force at the beginning of July after a long period of gestation - it is said to be the strictest anti-bribery legislation anywhere in the world.

Previously, a variety of different parliamentary Acts, some dating back to the 19th century, governed the activities of individuals and commercial organisations in this area.

Changes were first proposed as far back as the 1970s, but the issue has been subject to a series of delays - even after the Bill received Royal Assent in April 2010.

Much of the opposition has come from those who fear it will put UK businesses at a commercial disadvantage in foreign markets, noting that it goes further in some respects than the corresponding US legislation - the Foreign Corrupt Practices Act.

For journalists, one effect of the new laws is the need to exercise due diligence in making payments to local fixers.

While it is fine to make a reasonable and proportionate (two favourite words of legislators) reimbursement for services provided, if that payment is excessively high or includes an element to cover an unofficial facilitation payment to a third party - such as a local official - then the journalist and their employer are at risk of prosecution.

There is the potential for some international confusion here as facilitation payments are something that the US legislation allows but the UK Act does not.

One of the new provisions of the UK Act is that of corporate liability - so a media organisation can be held responsible in law for the individual actions of its employees, including freelancers or agents (such as fixers) acting on its behalf.

However, there is a defence if the employer can show that it had in place 'adequate procedures' to prevent an infringement of the legislation - even if evidence of a bribe can be shown.

It will be for the courts to decide how all of this is interpreted, but having a written policy on the issue and requiring employees to adhere to it - preferably with some training attached - is likely to go a long way to meet this requirement.

Some media organisations, in common with other UK businesses, are still refining their policies, but it is something all journalists with a connection to the UK are going to have to take on board as part of their day-to-day activities.

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