Le Monde and The Daily Telegraph. Two leading newspapers. Last month, both had parallel experiences when dealing with government leaks. Two delicate situations, two reactions – or, at least, two postures.

On September 13th, Le Monde proclaimed it was filing suit against the French government for illegally investigating a leak reaching one of its reporters. Technically speaking, this is a lawsuit is “against X” (John Doe in the US), targeting an unknown person or organization.

The backdrop is both titillating and significant. We have the Liliane Bettencourt case (the L'Oréal empire heiress). One revelation after another, the affaire became a huge embarrassment for Nicolas Sarkozy's presidency. Eric Woerth, a prominent cabinet minister, is at the heart of a web of conflicts of interests, all defended by a pathetic string of non-denial denials and outright fabrications. As the  Budget minister and as the chief fundraiser of Sarkozy's UMP party, Woerth was in charge of Liliane Bettencourt’s tax situation while simultaneously collecting her donations for Sarkozy's electoral machine. Still at the same time, to add another layer of recklessness (or cynicism), Woerth's wife was working for Liliane Bettencourt's main financial advisor, Patrice de Maistre, whom Eric Woerth got the Légion d’Honneur for, and who is suspected of helping Bettencourt evade taxes and break foreign bank account regulations.

The whole scandal blew up last summer after 21 hours of conversations, surreptitiously recorded by Bettencourt's butler, found their way the media (read this account in the Guardian). This triggered a flurry of police interviews, some under the strange French regime of “garde à vue” (short-term investigative custody). Quickly, the minutes of these interviews got in reporters’ hands, becoming the core of journalistic "reporting". It works that way in France: in every big "affaire", someone – usually an attorney, a magistrate, or a cop – leaks a witness' testimony, something theoretically protected by strict confidentiality rules. Quite often, in a French newsroom, you can hear "we should get the deposition this afternoon". Today’s standard practice evolved over the years: first messengers, then fax, and now email. In large part, such manipulative leaks have superseded old-style independent journalistic investigations. Quotes from a key witness grilled by cops or by an investigative magistrate are far juicier -- and less tiring than tedious journalistic legwork.



Editors, more than ever accountable for staff productivity, widely encourage such practices. Instead of deploying a team of reporters, reach out to a well-connected friend and you're in business. I'm not exaggerating, here. Recruiting and managing leakers now constitutes the bulk of French investigative journalism. Fine. After all, it can be very instructive and, sometimes, greatly entertaining. In the Bettencourt affair, the endless stream of leaks from a variety of sources transformed a family feud into an eye-popping tale of greed, soft corruption and lies at the highest levels of the French sate.

To plug a leak, Sarkozy's administration used a hammer to kill a fly. The DCRI (Direction Centrale du Renseignement Intérieur), something like the American FBI or the British MI-5, was asked to work on he case – which was not that complicated. The leaker turned out to be no less than a key minister of Justice staffer who had access to the entire case file. The guy was not that smart: he used his government-issued cell phone to call reporters. Once discovered, he was demoted and sent away overseas. This triggered a great deal of frustration among investigative reporters: a key source had been compromised and will no longer be able to leak something more interesting than the prattling of monkeys in the French Guyana jungle. (The poor sod, David Sénat, can’t catch a break: he’s now under investigation for allegedly trafficking influence in a murky illegal gambling case involving a company called Visionex.)

The serious part is this: in launching its investigation, the French counter-terrorism agency acted outside any legal jurisdiction, without warrant. Nicolas Sarkozy never shies away from using his executive power to deal with things that annoy him. In February, he got the very same DCRI to track down leaks dealing in rumors about the first couple’s private life.

To justify its lawsuit, Le Monde invokes the law that protects the confidentiality of a reporter’s sources. For the newspaper, the administration doesn’t have a right to use “all means necessary” to find the source of a leak. (The paper has a point about the illegal use of the anti-terror police). Needless to say, the action taken by Le Monde gained a great deal of support among the media elite and from a wide portion of the political spectrum.

Now, the British case. On September 28th, a personal letter from the Defense minister, Liam Fox, to the Prime Minister, David Cameron, landed at The Daily Telegraph. Its content is rather explosive as the cabinet member warns the PM of the "grave consequences" of budget cuts in the military. The next day, about 30 military police agents stormed the ministry of Defense, searching for evidence that could pinpoint the origin of the leak. They went through the offices of Liam Fox and of his direct subordinates, looking into computer hard disks, phone records and even cupboards.

Legal grounds for the use of the military police are unclear. Fact is, no one  seems to care. No one is questioning a government’s right to protect the correspondence between a Defense minister and the PM. Instead, the press focused on the substance of Liam Fox’s position on budget cuts and on the depth of his disagreement with David Cameron.

Two different stories. In the British case, serious policy issues are at stake. The French case is about the cover-up of conflicts of interests bordering on passive corruption, involving a billionaire and the ruling political party. In both instances, whistle-blower protection could be invoked: in the UK, the leaker could have wanted to draw public attention to the consequences of budget cuts; in France, a virtuous staffer could have been outraged by the Bettencourt cover-up. While Le Monde relies on the whistle-blower principle for its case, the British press is unlikely to do so. Up there, this is part of the usual cat-and-mouse game between the media and the government.

Le Monde's lawsuit is a bit wobbly. In a sense, it addresses a legitimate issue – e.g. the abuse of power in using the anti-terror agency outside of its legal framework. (One precision: the reporter who was handling the ministry of justice source has not been investigated himself  – no tail, no wiretap, only his phone number showed up on the staffer's cell phone). With this in mind: is it really the role of a newspaper to sue the government for such an alleged abuse of power? There is obviously a serious risk to see the lawsuit dismissed by the courts – to the great satisfaction of Sarkozy's team.

The best response should have been (and still is) a journalistic one. A week-long series of five or six investigative pieces on government cover-up practices, on the vendetta obsession within this administration, on the increasing difficulty in conducting proper journalistic work in this country, on the subordination of the legal apparatus, or on the French parliament’s inability to trigger independent investigations. The newspaper would also be entitled to expose in greater details how the executive branch tried to disrupt its own recent bailout (read Le Monde’s escape velocity) simply because Sarkozy doesn't like the new owners. There is no shortage of angles.

I'm not saying that Le Monde has not done some of the above. I'm merely suggesting that the editorial power of a highly respect newspaper carries much more weight than a fragile lawsuit.

frederic.filloux@mondaynote.com

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