Undercover operations by news media must not be fishing expeditions; they can be justified only as an instrument to obtain conclusive evidence of suspected wrongdoing

The Indian media use the expressions “undercover investigation” and “sting operation” as if they were one and the same thing. There is an irony in the conflation of these terms because in this country, undercover investigations are almost always sting operations.

Although both rely on false pretences and are justified in terms of public interest, there is an important difference between the two.

Undercover investigations need not necessarily expose someone's criminal intent or catch someone in the process of committing a criminal act. For example, the recent Tehelka exposé on the attitude of policemen to rape, which employed undercover reporters posing as research scholars, showed them up as misogynistic and “with a 19th century mindset” — not criminals. And Nellie Bly, to quote the classic textbook example, agreed to feign insanity to gain admission in a lunatic asylum for the New York World in 1887, to basically expose the neglect and heartlessness in the institution.

These weren't sting operations (a term first used in law enforcement), which are devised to catch a person committing a crime. In such cases, the investigative reporter plays along as a partner, inducing his or her target to commit a wrongdoing.

Cricket and spot-fixing

Sting operations raise serious ethical issues even when carried out by the police; in many legal systems, entrapment is allowed as a defence against criminal liability. In law enforcement, the sting operation is typically used to gather further evidence about wrongdoing for which there is already some evidence. Example: an undercover officer who poses as a customer to expose an illegal prostitution racket of which he has some prior knowledge or suspicion.

Considering that media sting operations involve breaching the law, it is strange that we rarely pause to mull over the ethical issues involved in carrying them out.

Take the recent India TV exposé about corruption and spot-fixing in the Indian Premier League (IPL). From the channel's chief editor Rajat Sharma's own account, it had no previous evidence of wrongdoing about all those who were stung. “We tried on 10 players and some of them said no to spot-fixing outright,” he was quoted as saying, which suggests that the sting was something of a fishing expedition.

Of course, the channel landed five cricketers — albeit all minnows — in its investigative net. But even if we are all shocked by what the stung cricketers said on hidden camera and are all agreed that they must be punished if found guilty, shouldn't we also be asking whether such a sting operation had strayed into a grey moral area?

Does the fact that there is a public interest justify any kind of sting operation? How far can such undercover exposés go? Is it all right for journalists to become a party to a crime — for example, attempting to bribe as India TV reporters did — in order to expose a crime?

These are difficult questions with no clear-cut answers. But it would seem reasonable to suggest that journalistic stings be carried out only as an instrument for acquiring conclusive evidence of serious criminality.

The India TV sting does not pass this test. Did the cricketer who agreed to no-ball for a price commit a criminal act or merely show corrupt intent? And the one who claimed that his IPL team owners paid him more than his official auction price — what exactly was he guilty of? Boasting? Couldn't he merely have been trying to “develop his value,” as he explained?

Also casting one's rod in the hope that one or another cricketer may rise to the bait is not kosher. What about those who refused to bite? What if no one bit? Wouldn't the entire operation have been one pointless invasion of privacy?

Contrast this with the News of the World cricket sting that led to the conviction of Pakistani cricketers. It was carried out on a cricket bookie suspected of running a spot-fixing racket and the secretly videotaped material corroborated what happened on the field.

The India TV sting also raises the question of how far one can go with inducement. Does attempting to bribe someone against who there is no previous evidence of corruption amount to deliberately inducing him to commit a crime? What constitutes entrapment and inducement by law enforcement officers are understood and defined variously in different legal systems. Journalistic sting operations in India are sometimes carried out with no thought about these matters at all.

Take the other notorious India TV sting, for example. In 2005, it secretly filmed an inebriated Bollywood actor propositioning an undercover reporter posing as an aspiring actress. While the channel piously maintained this was done to warn young girls with film ambitions about the casting couch phenomenon, it turned out that the sting was carried out with offers of whiskey and invitation to a hotel room — an operation that smacked of entrapment.

Operation West End

Other examples of dubious stings must include Tehelka's indefensible use of sex workers in Operation West End, aimed at exposing the corruption in the country defence procurement process. The call girls were arranged for some army officials who were being strung along and secretly filmed when having sex. The tapes were held back and not used as a part of the exposé. But when it was no longer possible to suppress what was done, the website (the magazine had not been launched) argued that that the army officials had demanded that call girls be procured and that it did so to keep the larger story alive. But this explanation is hardly convincing because it fails to explain why the website needed to secretly film the sexual encounters.

If whiskey and illicit sex may be legitimately used in sting operations, where do we draw the line? At narcotics and bacchanalian orgies?

Following a fabricated sting that claimed a Delhi schoolteacher was running a prostitution racket and triggered mob violence, the Delhi High Court made a distinction between stings that capture an event that would have taken place irrespective of whether the hidden camera was there or not and those in which the media induce and entrap persons to commit certain actions.

It would be a good idea if the Indian media, hungry to grab eyeballs through sensational stings, keep this distinction in mind while deciding whether or not to arm undercover reporters with hidden cameras and a blanket license to invade privacy.

mukund@thehindu.co.in

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