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How do I deal with an undercover reporter?

For every documentary of legitimate public interest, there is a failed piece where lawyers can show serious deficiencies in the behaviour of reporters and producers. This piece looks at some of the issues we most frequently encounter and how to deal with the scenario.

One of the most impactful forms of reporting is undercover journalism, where a media organisation or campaign group gets inside an organisation to see for itself the practices deployed and report directly on the experiences. The results can be striking and often award winning, but it is a controversial practice only justifiable in extreme circumstances.

Can you spot if you have an investigative reporter inside your organisation?

It is usually only those who have direct experience of undercover reporting who can spot when they are being targeted. Some of the tells include:

How do you normally find out?

Normally the first you hear of an undercover reporter being in your organisation is when a producer of a documentary approaches you with a list of allegations and request for comment as part of the legal part of the production process.

Is undercover reporting illegal?

No, but undercover reporters can commit criminal or civil wrongs in gaining access to the location or while they are in there. Examples we have encountered include the obvious like false representations to identity, false references given by organisations to assist access, misrepresentation. More serious issues occur when we have caught undercover reporters engineering incidents, taking confidential information or obtaining and using sensitive personal data in breach of data protection regulations.

What rights does the subject of the reporting have?

All reporting standards include provisions like subjects being treated fairly, having a right to respond and there are legal rights against misdemeanours by journalists. There are also rules on when undercover reporting is legitimate, and most media organisations and broadcasters have criteria that must be met before they will sanction it. Conversely this means that if the journalists have not met those standards – either prior to gaining access or in their conduct while they are within an organisation – then you have an ability to challenge their use of material or what they say about it.

What steps should you take when an undercover reporter has been in your organisation?

The first step is to understand from your own people what happened. This should be done as soon as possible after the event and preferably by an external independent investigative team. Taking this step allows you to trace what the journalist had access to, what they may have witnessed and which people they may have spoken to. The more information those individuals can supply, the greater the opportunity you have to challenge the behaviour of the undercover reporter – such as whether they were an observer or taking a more active role in seeking to create newsworthy events.

How does this fit in with dealing with the broadcast?

Usually undercover reporting is just part of a broadcast. The undercover reporting will have been sanctioned because the media are already alerted to issues either by public events or what sources have told them. An adequate and well-timed response to the broader broadcast can have a huge impact on what appears. See our guide to how to deal with featuring in documentaries.

Is it possible to stop undercover reporters getting into my organisation?

There are steps you can take to make it less likely. We worked with a business in a controversial sector where one of their sites was particularly prone to undercover reporting techniques. We analysed the application process of those who successfully infiltrated the business and drew out patterns which were able to indicate a higher likelihood of such issues, leading to an enhanced referencing policy in those areas.