It takes quite a lot these days to make the conduct of News International in the phone hacking affair look any worse, but a new legal document published by the Daily Telegraph seems to do just that.
The High Court document summarizes common elements of the cases brought by recent civil litigants against the company, and it includes a remarkable passage dealing with what is described as News International’s ‘Email Deletion Policy.’
This does not refer to any routine purging of the databases to ease the burden on the servers. It is, the document alleges, with supporting evidence, a deliberate attempt to destroy evidence that might be damaging to the company, and it is also claimed that hundreds of thousands of emails were indeed destroyed.
If you rearrange the elements in the document as a narrative, and add a little background, it looks like this.
From as early as 2007 until today the company has been on continuous, formal, legal notice to preserve all possible evidence in relation to phone hacking. 2007 was the year in which royal editor Clive Goodman and private investigator Glenn Mulcaire were convicted of hacking, and in which the footballers’ union chief Gordon Taylor sued the company for breach of privacy. Over the months and years other civil cases piled up, and in each case the company was reminded of its legal obligation not to destroy evidence that might be relevant.
The company insisted for years that Goodman was the ‘one rogue reporter’ involved in hacking, but pressure on it mounted steadily from July 2009, when the Guardian revealed the ‘for Neville’ email, appearing to implicate others. That revelation naturally prompted questions about what other compromising emails might have been sent, and the company gave MPs the impression there had been a thorough search and nothing at all was found (see Press standards, privacy and libel – Culture, Media and Sport Committee, para 434).
Behind the scenes, however, in November 2009, News International staff produced a ‘draft framework Email Deletion Policy’ which, according to the Telegraph document, included among its aims ‘to eliminate in a consistent manner across NI (subject to compliance with legal and regulatory requirements) emails that could be unhelpful in the context of future litigation in which an NI company is a defendant’.
Early in 2010 the Commons media select committee published a damning report on hacking, strongly suggesting that hacking had been widespread and accusing the company of obfuscation and collective amnesia. These accusations were fiercely denied, but at about the same time the Email Deletion Policy appears to have been ‘discussed and approved’ by executives.
Surviving emails from one senior NI executive between May and October 2010 suggest that the intention was to destroy all emails sent before January of that year, 2010. In other words, no email traffic either from the period of hacking (roughly 2002 to 2006) or from the period of denial (2006 onwards) would survive. The surviving emails referred to in the Telegraph’s document also indicate, however, that progress was not quick.
On 1 September 2010 pressure on the company increased sharply with the publication of an investigation of hacking by the New York Times, which produced substantial new evidence and prompted the Metropolitan Police to reconsider its backing for News International’s ‘one rogue reporter’ line. Six days later lawyers for Sienna Miller, who was now suing the company and who would prove to be the victim of one of the most sustained and aggressive campaigns of intrusion, served the latest formal notification that relevant documents must be preserved.
This did not halt the Email Deletion Policy. On the contrary, on 9 September, just three days after the Miller notice, someone in the News International technology department emailed a colleague:
‘If the deletion need [sic] to wait until tomorrow, then that is fine. There is a senior NI management requirement to delete this data as quickly as possible but it need [sic] to be done within commercial boundaries’.
One month later the NI executive asked a company lawyer:
‘How are we doing with the TMS email deletion policy”? The lawyer forwarded this to a colleague in the IT department asking: “Should I go and see [them] now and get fired – would be a shame for you to go so soon?!!! Do you reckon you can add some telling IT arguments to back up my legal ones”?
It was now late 2010. The new court document implies that it was at this moment that all emails on the email archive system up to 31 September 2004 were deleted. But the job was still not complete.
January 2011 was a very important month in the scandal. In that month the Metropolitan Police announced its big investigation, Andy Coulson resigned from Downing Street and News International let it be known that it had found and disclosed to detectives important new evidence.
Also in that month, according to the new document, all emails on the News International archive system up to 31 September 2007 – covering the entire period of hacking – were deleted.
As we know, a great deal has since been recovered and is now being examined by detectives, and we are also told that News International is now cooperating very fully with the police – although this is apparently against the wishes of some staff.
This narrative leaves Rupert Murdoch’s company with a great many more questions to answer about the past. In addition, it might offer food for thought for Michael Gove, who this week became the latest to suggest that the whole hacking affair had been got out of proportion.
Brian Cathcart teaches journalism at Kingston University London and tweets at @BrianCathcart