The first issue is the most straightforward: was it in the public interest to publish the fact the Secretary of State for Health and Social Care was having an affair with Gina Coladangelo, a non-executive member of the Department of Health and Social Care “Departmental Board” and had broken Covid guidance in his office?
Although the fact of an affair is a “private” matter, as commentators have pointed out there appear to be strong public interest justifications in favour of publication in this case including
- The appointment of Ms Coladangelo to a paid public position which was supposed to involve independent oversight of the Health Department’s work.
- The apparent hypocrisy of Mr Hancock having agreed with the 2020 resignation of Professor Niall Ferguson for breaking social distancing rules.
- The breach of social distancing rules.
- The provision of a Parliamentary pass to Ms Coladangelo.
In short, there appears to have been a strong argument in favour of the Sun publishing the fact of the affair.
The second issue is more difficult. Was the Sun justified in publishing the photograph of Mr Hancock and Ms Coladangelo in a “clinch” and, in particular, the video film of them?
It is of course well established in privacy law that photographs and film are particularly intrusive (see, generally, Rebecca Moosavian, “Stealing ‘Souls’, Article 8 and photographic intrusion”). Thus in Theakston v MGN ([2002] EMLR 398) although the claimant was refused an injunction to restrain publication of a story about a visit to a brothel, he did grant an injunction to restrain the publication of a photograph of the claimant inside the brothel.
The video published by the Sun is particularly intrusive and is likely to have an adverse impact on the families of both individuals. Its publication was not necessary for any of the “public interest” aspects of the story and there is a strong argument that it should not have been published.
The third and most difficult issue concerns potential criminal liability. The Sun has attributed its report of Mr Hancock’s affair to a “concerned whistleblower” but it has not sought to answer the underlying question as to how and for what purpose the video was recorded?
There only appear to be three possible scenarios:
- This was a video lawfully taken by the Department’s CCTV for ordinary security purposes which was illegally copied and leaked to the newspaper by the “whistleblower”.
- The “whistleblower” hacked into the Department’s CCTV and leaked a lawfully taken video to the newspaper.
- The video was taken by an unauthorised hidden camera placed in the Department in order to record the actions of Mr Hancock and Ms Coladangelo so that the “whistleblower” could provide it to the newspaper.
The facts are unclear and there seems to have been competitive “briefings to the press” as to what happened. On the one hand, the MailOnline has what is said to be a photograph of the camera in question. It claims to have seen messages from the “whistleblower” to an anti-lockdown campaigner about “damning CCTV footage”. This seems to be scenario one above.
On the other hand, other newspapers have suggested that there was an unauthorised hidden camera, reporting that Mr Hancock had no idea the camera in his office existed. The Times has reported as a fact that the camera was “hidden in a smoke detector“. This would be scenario three above.
In the first two scenarios above the “whistleblower” would – at the very least – have committed an offence under section 1 of the Computer Misuse Act 1990.
On all three scenarios there are also other possible criminal offences, for example, under section 170 of the Data Protection Act 2018.
The position of the Sun is not straightforward. It has benefited from what appear to be criminal breaches of duty by someone who is highly likely to have been a civil servant.
If the Sun had paid the “whistleblower” or offered them some inducement to provide the video an offence under the Bribery Act 2010 would have been committed. If they had encouraged this individual to obtain the video then they may be liable as an accessory to their criminal offence(s). The Sun is, of course, acutely aware of its potential exposure in this area and it seems likely that it would have been careful to avoid potential criminal liability.
What is clear, however, is that the “whistleblower” is exposed to the risk of criminal prosecution. The fact that publication is in the public interest does not justify the commission of criminal offences by “whistleblowers”.
It appears that there will be an internal civil service investigation – but that the police will not be involved. It remains to be seen whether the Government has the appetite to ensure that the wrongdoer is found and prosecuted.