Intimidated by the press, disappointed by the PCC and thwarted by the courts, the ICO decided to go public about data theft, in May 2006 publishing the report What Price Privacy? which discussed Motorman, inter alia. It also raised the question of the inadequacy of the penalties for breaking the DPA:
The fact that prison is not currently an option for persons convicted of Section 55 offences belittles the offence and masks its true seriousness, even to the judiciary. Whenever possible, the police will arrest for malfeasance or corruption offences rather than Section 55 offences, as the latter are non-arrestable offences and carry a fine only. The police tell us that they would prefer to use Section 55 as the basis for their investigations – and believe that they would achieve quicker convictions – if the offence carried the possibility of a prison sentence. The threat of imprisonment would also, in their view, act as a suitable deterrent. (27)
The ICO recommended that the penalty for Section 55 offences be increased to a maximum of two years imprisonment, or to a fine, or both, for convictions on indictment; and to a maximum term of six months imprisonment, or a fine, or both, for summary convictions.
Press coverage of the report was relatively sparse, and only Private Eye and the Guardian noted in any detail its critical references to the press.
However, in July 2006, largely as a result of What Price Privacy?, the Department for Constitutional Affairs (DCA) published a consultation paper entitled Increasing Penalties for Deliberate and Wilful Misuse of Personal Data, which proposed to amend the DPA precisely along the lines recommended by the ICO.
On 21 September 2006, Richard Thomas met Ian Beales, the Secretary of the Editors’ Code Committee. According to Thomas’ account [pdf], ‘his [Beales] main difficulty is that there is not much incentive to improve the Code unless the threat of increased penalties disappears at the same time’. As Lord Justice Leveson was later to point out:
‘This is a somewhat remarkable position to adopt: the offence contained within s55 was the law and contained within it a defence for journalists acting in the public interest. A Code of Conduct should surely provide the very best guidance it can and it is difficult to see why there needs to be an incentive to improve it’ (Report, 1025).
Thomas’ account also reveals that Beales was ‘quite rude’ about the DCA consultation paper and that editors’ main concern was the ‘chilling effect’ on journalism of tougher sentences. Indeed, it is safe to assume that by this point the PCC, and in particular its combative and abrasive Chairman Sir Christopher Meyer, was actively campaigning side by side with its industry paymasters against the reforms proposed by the ICO.
What Price Privacy Now?
A second report, What Price Privacy Now?, published in December 2006, identified thirty-two different publications which were using the services of private investigators to obtain private information from the PNC, telephone companies, the DVLA and elsewhere, and estimated that 3,757 separate enquiries had been made by journalists specifically to Whittamore.
|Publication||Number of transactions positively identified||Number of journalists/clients using services|
|Mail on Sunday||266||33|
|News of the World||228||23|
|Weekend Magazine(Daily Mail)||30||4|
|Night and Day(Mail on Sunday)||9||2|
(Adapted from What Price Privacy Now: 9)
The Report also discussed press reaction to What Price Privacy? and noted that:
The reaction of some sections of the press – both editorial and proprietorial – that the proposals for custodial sentences should seemingly apply to others but not journalists is disappointing. The Information Commissioner fully recognises the importance of freedom of expression. But he considers that press representatives have ignored or not taken sufficiently into account the existing exemptions within the legislation to ensure that the press and other media are able to function lawfully in pursuit of legitimate investigative journalism. Public interest and other defences are already available. Freedom of speech is not freedom to break the law by bribery or deception where there is no public interest justification. (Ibid.: 27)
But what we also know now, thanks to evidence given to Leveson is that managers and editors of the newspapers cited in the two ICO reports did remarkably little to check which of their journalists had had dealings with Whittamore, and whether any of these amounted to potentially illegal activity. This evidence includes, in particular the witness statement of Sly Bailey [pdf], the chief executive of Trinity Mirror, and her oral evidence [pdf] on 16 January 2012, the witness statement of Peter Wright [pdf], the editor of the Mail on Sunday, and his oral evidence [pdf] on 11 January 2012, and Schedule 1 [pdf] to the witness statement of Paul Dacre, editor of the Daily Mail and editor-in-chief of Associated Newspapers, and his oral evidence on 6 February 2012 [pdf].
Reasons for this inaction included, with mind-numbing regularity: all newspapers were using Whittamore or similar agencies and journalists didn’t realise what they were doing was possibly illegal; rather than launching enquiries into past behaviour it was more important that it was not repeated in future; it was all a long time ago and many journalists had moved to other newspapers; and, in particular, the Information Commissioner had not provided the newspapers with enough evidence to investigate individual journalists and stories.
Given the number of times which newspapers have trotted out this last excuse it is crucial to understand why this was not done. The answer lies in a remark made by Thomas’ successor, Christopher Graham, in 2009. Asked by the Department of Culture, Media and Sport Select Committee, in the course of its inquiry into press standards, privacy and libel, if he could supply it with any of the material seized from Whittamore, he replied:
Whilst we are keen to assist the Committee in its Inquiry it would be difficult for us to provide any of this information unless we were under legal compulsion to do so or a convincing case was made as to how this level of detail, including the identity of individuals, would materially assist the Committee. It is important to bear in mind that the ledgers and invoices were seized under search warrant powers and their disclosure, other than for the purpose of our original investigation, might well be unlawful [under Section 59 of the DPA]. Furthermore they contain personal information not just about journalists but also about other individuals unconnected to the media, who appear to have been involved in the ‘blagging’ trade. This includes the victims of that trade whose involvement may not be in the public domain and who may not want any further intrusion into their privacy. (Department of Culture, Media and Sport 2010: Ev 341)
On the other hand, Graham did arrange for the Committee Chairman, John Whittingdale, to view the material at his office in August 2009, on the understanding that the information was confidential. In addition he offered to make available to the Committee redacted versions of the invoices and ledgers, but this was not taken up. He also expressed his willingness to ‘share with a properly authorised editorial ﬁgure in a newspaper group’ the names of the 305 journalists netted in the raid on Whittamore’s office in March 2003 (ibid.: Q1861). Furthermore, he made the same offer to the Society of Editors conference in 2009. Thus the ICO’s alleged omertà was not as absolute as the press has consistently suggested.
It is also worth noting at this point that the earlier DCMS Select Committee inquiry, that into the self-regulation of the press, had usefully flushed out more of the PCC’s line on reform of the DPA, which, entirely characteristically, took the form of an attack on both the ICO reports. In its written evidence to the Committee the PCC argued that it did not believe that the case for greater penalties and been made, and that ‘whilst there may be practices to condemn, there seem to be several problems with the reports’, namely:
The evidence appears to have been gathered after a raid on premises in November 2002. The behaviour criticised must therefore be some years old, but there is no evidence about the extent to which such activity reflects current practice …. There is an impressive-sounding but superficial list of 305 journalists who were alleged to have been involved in this trade. But there is no indication of whether the behaviour was illegal or whether, if it was known to be, it would have qualified for a public interest exemption. There is little to no evidence about whether and when information sought actually led to anything being published. (Department of Culture, Media and Sport 2007: Ev 62)
In his appearance before the Committee, the PCC Chairman, Sir Christopher Meyer, stated that:
It might have been easier to pursue some lines of inquiry had some of the evidence been made available to us. Of course, now we are half a decade on since the Motorman inquiry and, of course, there have not been prosecutions of journalists. We have these 305 cases and reading the detail, particularly of his second report, you can draw the inference that he thinks that a good deal of this activity was indeed illegal but the case has not been prosecuted by the authorities and no journalist has been brought to court. (Ibid.: Q160)
Significantly, exactly the same arguments were advanced by both the Editors’ Code Committee (ibid.: Ev 30) and the Society of Editors (ibid.: Ev 30-1). However, none stands up to scrutiny.
Firstly, for the reason noted earlier, it would have been extremely difficult for the ICO to have provided either the PCC or individual newspapers with the information which they claimed that they required before they could undertake any investigation. Second, the reason why no journalists had been prosecuted in either the Glade or Motorman operations had, as already noted, nothing whatsoever to do with the nature of the possible cases against them and was simply because the ICO feared that it lacked the resources to enable it to take on the might of the newspaper industry. Third, had the newspapers in question bothered to investigate properly the financial evidence which they must have had in their possession concerning both their journalists’ dealings with Whittamore, as well as the articles resulting from these dealings, they could perfectly easily have answered the question of whether these stories were or were not in the public interest, and thus were or were not in breach of Section 55 of the DPA.
Certainly the Whittamore-sourced stories which surfaced during Operation Glade, and which can indeed be identified, were not remotely in the public interest. And finally, Richard Thomas himself stated on numerous occasions that that there was no public interest justification in the vast majority of the stories which he had investigated. Thus at the earlier DCMS Select Committee hearing he argued that ‘in the cases we have investigated there has not really been any suggestion of what I would call genuine public interest. We can recognise it when we see it but none of the cases we have come across, I think, could easily have been justiﬁed as being in the public interest’ (2007: Q49). And later, at the Leveson Inquiry [pdf], he said of the Motorman material that ‘I haven’t seen a whiff of public interest. It was tittle-tattle. It was fishing. There may be one or two examples, but they would be exceptional’.
This the second part of a four part post. The first part was published on 5 January 2013.
Julian Petley is Professor of Screen Media and Journalism at Brunel University, Chair of the Campaign for Press and Broadcasting Freedom, a member of the advisory board of Index on Censorship and of the editorial board of the British Journalism Review. He has written widely on the press.