The BBC revealed last week that the News of the World had engaged ex-policeman Derek Webb engage in covert surveillance of more than 100 individuals. From 2003 through to 2011 Mr Webb worked for the newspaper following celebrities, royals, politicians and others, sometimes for days, or weeks at a time.For example, former Home Secretary Charles Clarke MP is said to have been watched for more than 20 days. The full “Newsnight” report can be viewed here.
Michael Crick of Channel 4 News has reported that there were 153 names on Mr Webb’s lists. This list includes 13 MPs as well as legal figures such as Lords Irvine, Macdonald and Goldsmith. Many of those on this list are also reported to have been phone hacking victims – including Princes William and Harry, Paul Gascoigne, Lee Chapman, Gordon Taylor, Heather Mills and Ashley Cole. As was widely reported last week, lawyers working for phone hacking victims were also placed under surveillance.
According to the BBC, Mr Webb kept detailed logs of his movements and observations while on surveillance jobs. He said
“Basically I would write down what they were wearing at the time, what car they were in, who they met, the location they met, the times – the times were very important – and I would keep that”.
It appears that he also took video footage of those under surveillance.
Was the surveillance illegal?
Mr Webb – who appears to be only one of a number of investigators employed by the “News of the World” – told Newsnight that there was “nothing illegal” in what he was doing. In reality, the position is not so straightforward. There are a number of legal wrongs which, potentially, can be committed by a person who follows others and makes records of their movements.
First, there is a potential claim for misuse of private information. A person has a reasonable expectation of privacy in relation to many of the everyday activities which he or she engages in. Mr Webb describes following individuals into semi-private places such as hotels. Even where the surveillance takes place in public places privacy rights can often be engaged.Some information which can be gained from following someone is obviously private: as visits to the doctor or to the home of a lover. Even information about more mundane activities – who a person meets or where they shop – is potentially private. All this is information which an individual can reasonably expect is not going to be collated by someone working for a newspaper. The taking of photographs of a person in a public place can, in circumstances, infringe their privacy rights (see Murray v Big Pictures  Ch 481).
In other words, insofar as Mr Webb recorded information about a person’s movements and passed it on to the News of the World this would, in the absence of some “public interest” justification be likely to constitute a misuse of private information. The person who was under surveillance would have a claim for damages as a result.
Secondly, insofar as Mr Webb recorded or transmitted the information he obtained electronically, the provisions of the Data Protection Act 1998 (“DPA”) would come into play. Data as to a person’s movements is “personal data” for the purposes of section 1(1) of the DPA. Once again, in the absence of any public interest, it is difficult to see how Mr Webb’s processing of this data can have been lawful. The analysis in Kirsten Sjovoll’s recent post in relation to phone hacking can also be applied to data obtained by surveillance.
Thirdly, there is a potential claim under the Protection from Harassment Act 1997 (“the PHA”). In order to commit the tort (or the crime) of harassment it is not necessary for the “victim” to be aware of the harassment at the time. This point was considered in the case of Howlett v Holding ( EWHC 41 (QB)). In that case the defendant revealed that he had had the claimant put under video surveillance at various times without her knowledge. The defendant argued that because s. 7(2) provides that “References to harassing a person include alarming the person or causing the person distress” there could only be harassment if the claimant was aware of what was happening at the time.
The court held:
“The provision [in s.7(2)] has encouraged Mr Holding to argue that he is, in effect, entitled to have Mrs Howlett and her house watched as often as the whim takes him, and to have her followed in the street, and into shops and restaurants, provided any individual act of surveillance does not involve alarming Mrs Howlett or causing her distress. Meanwhile, he can derive satisfaction from her suffering the anxiety and uncertainty of not knowing when “big brother” will strike. There can be little doubt that such behaviour would constitute a “course of conduct” for the purposes of s.1(1) of the statute. ..
To keep someone on tenterhooks, knowing that she is likely to be watched as she goes about her daily life, seems to me remarkably cruel. Just because she does not know, in any given instance, that surveillance is taking place, it does not make it any the less distressing for her. What causes the distress is the awareness that secret surveillance is taking place, or is likely to take place at any moment. I see no reason why that form of besetting should fall outside either the spirit or the letter of the Act.”
In other words, a person who finds out subsequently that he or she has been placed under surveillance may then suffer distress and may have a claim in harassment.
Once again, if the “surveillance” was for some proper “public interest” purpose then Mr Webb (and the “News of the World”) would have a defence: by section 1(3) of the PHA where the course of conduct is pursued for the purpose of preventing or detecting crime or where in the circumstances it was reasonable to pursue the course of conduct there is no harassment. The general position under the PHA is more fully discussed here and here.
In short, contrary to Mr Webb’s beliefs, many of his surveillance activities were potentially illegal. Such activities could give rise to claims for misuse of private information, breach of statutory duty under the DPA and harassment.
Of course, all three claims are subject to “public interest” defences. For example, if Mr Webb was placing individuals under surveillance because of suspected criminal wrongdoing then it is likely that both he and the “News of the World” would have a good defence to any civil claim. However if – as seems to have been the case most of the time – the purpose of the surveillance was to assist in the preparation of stories about the private lives of individuals then public interest is much more difficult to make out. If the publication of a story about the sex life of a footballer is not justified in the public interest, the gathering of information to support such a story would likewise be unjustified.
It has already been reported that one of the lawyers placed under surveillance is intending to take legal action. It will be interest to see whether any of the other 153 individuals on Mr Webb’s list bring civil claims against him or News Group Newspapers.