The Duty to Hack, Steal and Betray Confidences? Press Freedom and the ‘Paradise Papers’ affair – Paul Wragg

The BBC and the Guardian are being sued for breach of confidence for their part in the ‘Paradise Papers’ affair in which some 6.8 million documents were stolen (but not by the defendants) from Appleby Global Group LLC, a law firm operating outside the UK. 

According to the claimant these documents detailed the lawful means by which their clients minimised their tax liability in the UK (for background: see Adam Speker’s previous post on the Paradise Papers).

At a preliminary hearing on the question as to which court should hear the case ([2018] EWHC 104 (Ch)), the Judge, the court referred to the anticipated defence of the BBC and the Guardian (based upon letters from their solicitors) that any breach of confidence (which was denied) was justified by the public interest in disclosure:

“The BBC and the Guardian have said that the documents reveal widespread use by wealthy individuals and business entities of aggressive tax avoidance schemes and in some instances potential tax evasion. It is in the public interest, they say, that this information is published to contribute to the continuing political conversation about tax including the ethics and propriety of the offshore finance industry.”

I will leave it to others to discuss whether the defendants knew or ought to have known that the documents were confidential, etc, and that there was a prima facie breach of the duty of confidentiality through unauthorised access and disclosure.  My interest is whether, supposing there was a breach of duty, the public interest in access and disclosure outweighs the duty of confidentiality imposed upon the press recipients.

Since the defendants had no knowledge of what the documents said until they read them, this raises three important issues:

1) is it in the public interest to access documents, the contents of which is unknown, when there is reason to suspect (and maybe know) that those documents have been stolen?

2) Is it in the public interest to endorse (through positive judicial decision) this sort of fishing expedition?  To trawl through documents in case they reveal something of public interest?

3) Is it in the public interest to endorse intrusive journalism if it finds nothing illegal, but does find something of moral significance?

When the News of the World ceased trading in July 2011, amidst the phone-hacking scandal, Newsnight presenter Emily Maitlis interviewed Paul McMullen, former deputy features editor at the paper, Greg Dyke and Steve Coogan.  Playing devil’s advocate, she said to Greg Dyke: ‘If these means were used, for example, to hunt down Ian Huntley… would we find this less morally reprehensible?  I put it to you that the answer is probably yes, right?’.  He conceded the point, thought reluctantly: ‘you can see there are occasionally public interest cases, but the answer is no’.  Of course, Dyke was discussing the discovery of criminal activity, not the discernment of moral proclivity.

But Lord Justice Leveson, in his inquiry, was much more critical of this possibility.  It was put to him that ‘the press is, or should be, ‘entitled’ to break the law where to do so would be ‘in the public interest’.’  Whereas he recognised that the law does provide latitude to the press where public interest expression is at stake (but, in fact, this applies not only to the press, but everyone), he rejected the suggestion.  This, he said,

‘emphatically, does not mean recognition within the law that, as a matter of general principle, the press possesses any entitlement or expectation to be indulged, in the national interest, in special exemption from observing the requirements of law’ (The Leveson Report, pp 66-67, [5.10]).

He concluded:

‘A press considering itself to be above the law would be a profoundly anti-democratic press, arrogating to itself powers and immunities from accountability which would be incompatible with a free society more generally.  All who have the privileges and responsibilities of holding power to account, including police, politicians and press, must themselves champion and uphold the accountabilities they proclaim for others.’ (p 66, [5.6]).

With the Paradise Papers case, it is vital not to conflate two separate issues when considering the public interest question.  That is, the public interest in the government’s tax regime and the public interest in journalists provoking public hostility and indignation toward selected individuals over their private decision-making.  If the claimant’s version of events is accepted, then it is only this latter question that matters.

This distinction is not clearly established in the preliminary hearing in Appleby v BBC and Guardian (not that it needed to be).  But it must be remembered that the first sort of public interest is not at stake in this case.  It is immaterial that there is a public interest in the government’s tax regime.  The defendants can discuss this issue to their heart’s content.  They can scrutinise, criticise, and decry the government’s policy on handling offshore activity as much as they want.  What they are not entitled to do, though, is break the law to give that discussion more bite.

This can be put more forcefully through the following example.  It is uncontroversial to say there is a public interest in NHS policy.  There is a public interest in the amounts spent by health authorities on treatment.  Some authorities provide treatments that others cannot afford.  These issues raise difficult moral and legal questions.  But that would not justify the press gaining unauthorised access to patient files to question why Mr Smith received treatment when Mr Jones did not.  Neither would it be for the press to criticise Mr Smith for receiving treatment on the NHS when it is clear Mr Smith can afford to pay privately but Mr Jones cannot.  This is the case even though it raises issues about the rich (and even the not so rich) and what they do.  Clearly, by discussing the cases of Mr Smith and Mr Jones the press would be ‘shining a light’ on an important topic and ‘contributing to a continuing political discussion’.  But the press is never entitled to use Mr Smith and Mr Jones as pawns in that debate – or, as Kant put it, as means to an end.

Does this view, though, sufficiently recognise Article 10 of the European Convention on Human Rights?  After all, the European Court of Human Rights has consistently referred to the importance of press freedom in these terms:

“The press plays an essential role in a democratic society.  Although it must not overstep certain bounds, regarding in particular… [inter alia] the need to prevent the disclosure of confidential information, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest… Not only does it have the task of imparting such information and ideas: the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of ‘public watchdog’”.

This principle cannot be read selectively.  It does not grant the press a right to impart information of public interest in any and all circumstances.  It limits this so-called duty to disclosures that are in conformity with the law; that do not ‘overstep certain bounds’ created by, for example, the law of confidentiality.

The claimants say the stolen documents reveal no illegality.  The defendants dispute that, though this in tentative terms, for they say ‘in some instances potential tax evasion’ is revealed.  Why it is put equivocally is a mystery.  But let us imagine that all the documents prove that there is tax evasion, and on a massive scale.  Surely, in those circumstances, the breach of confidence is justified.  The UK case law suggests otherwise (see N A Moreham and Sir Mark Warby, eds, The Law of Privacy and the Media (3^rd edn, OUP, 2016), 11.96).  Whereas it is true ‘there is no confidence as to the disclosure of iniquity’ (Gartside v Outram (1857)), the case law indicates that ‘the disclosure must be to one who has a proper interest to receive the information’ (Initial Services v Putterill [1968] 1 QC 396, 405-6; see also Re a company’s application [1989] Ch. 477, 481).  Where the offender is a public office holder, the appropriate audience is the public.  But if there is tax evasion happening, then it is the HMRC who should be notified so that they can investigate and, if necessary, prosecute.  As Sir John Donaldson MR put it in Francome v Mirror Group Newspapers ([1984] 1 WLR 892, 898):

“[the press] are peculiarly vulnerable to the error of confusing the public interest with their own interest… In the instant case… it is impossible to see what public interest would be served by publishing the [information] which would not equally be served by giving [it] to the police…  Any wider publication could only serve the interests of the [newspaper].”

The European Court of Human Rights takes the same view.  The act of accessing confidential information might be justified, where the publisher was a passive party in the leak of that information, if, for example, it disclosed evidence of, say, corruption in public office.  That is not the case here.

Moreover, as the Grand Chamber has said as recently as November 2016, this principle does not create special rights for the press as such.  It is of informational not institutional significance: it applies when anyone (NGOs, academics, bloggers, etc) discovers information of public interest that ought to be known by the public (Magyar Helsinki Bizottsag v Hungary, [168]).  But this principle has never been used to authorise (post facto) theft of information, or the betrayal of confidences, or the hacking of mobile phones.  Instead, it has been used as a moral apologia to defend the dissemination of hate speech by the press, or to legitimate (a degree of) exaggeration and provocation in defamation cases, or (as in Magyar Helsinki Bizottsag v Hungary) to defend the right of access to information from public authorities.  It is definitely not a principle which sanctions journalists to act unlawfully.

Appleby v BBC and Guardian raises important issues that would benefit from judicial consideration.  When is it acceptable for the press to usurp the powers of state officials (in this case HMRC) for their own ends?  The press has an important role to play as a public watchdog, but that does not give it licence to act like some grand inquisition nor to act unaccountably.  The BBC, at least, is subject to independent regulation.  The Guardian is not.

So, the question remains, why should the press be able to access, indiscriminately, the private information of some, to chase them with cameras, to dog them with questions, to harass them into acting according to their politics, when the state would be acting unlawfully if it did so, and when the press are ready, as the Cambridge Analytica scandal shows, to condemn others who do the same?  Press freedom is important, as are the rights and liberties of citizens to be left alone when they act in conformity with the law, but private companies, like the press, cannot behave as if above the law.

Dr Paul Wragg, Editor-in-Chief, Communications Law; Associate Professor of Law, University of Leeds; Associate Fellow of the Honourable Society of the Inner Temple.