Rather than condemn and expose the perpetrators of this large scale cyber hack , the BBC and the Guardian, working collaboratively, as they did in 2018, have chosen to celebrate shamelessly this orchestrated criminal activity on the false pretense that there is some greater public interest at stake.
For the victims, the harm caused is very real. The insult to injury, though, arises from the chronic insensitivity of the reporting. For the BBC and the Guardian continue to laud the scale of this criminal hack. A neat infographic on the BBC’s site, for example, delights in comparing the scale of this travesty to those other previous journalism-backed crimes, colourfully described as the Panama Papers and the Paradise Papers.
The reporting is littered with euphemisms that speak to a misguided, vainglorious honour in abetting this crime. The alliterative descriptors, for example, deliberately evoke the Pentagon Papers case, in which the Washington Post and New York Times risked much to alert the American public to catastrophic failings in the US’s administration of the Vietnam war. That was journalism at its finest. This is journalism at its basest.
Those following this reporting closely, who have muscled past the gloating superciliousness, have already recognised two important aspects of the Pandora Papers scandal.
First, nearly all the reporting so far has concerned perfectly legal transactions – offshore companies used as part of lawful financial arrangements. Rich people have money and seek to avoid tax. This is hardly news.
Secondly, the hectoring overtones of the reporting creates hostility toward careful tax planning in all forms. Anyone who engages professionals to manage their finances is being warned that their confidential financial information might find its way into the media. A section of the public is deceived into believing there is something socially repulsive, if not evil, in prudent accounting. For if tax law is tightened up, who will it affect most? The middle class.
For the Guardian and BBC, though, paying only no more tax than the law requires is, somehow, deeply unethical. Social media reaction suggests that few are fooled by this. For the truth is that these two supposed bastions of equality, justice, and fairness for all, these emblems of liberal rationality and fair play, have become what they purport to despise most: bigoted Otherisers. In their hands, the victims are not real people but something less than human. They choose descriptors of maximum alienation – words like oligarchs, or playboy, or billionaire – so as to create the optimum conditions for the classic right-wing narrative of ‘us’ and ‘them’: them, the gluttonous swindler, and us, the underpaid, overworked proletariat, robbed of our fair share.
In right-wing hands, the non-white, non-male, non right-wing populace is reduced to the status of Untermenschen – a grossly inferior people undeserving of sympathy. This strategy is achieved through euphemistically terminology, which is exactly the repulsive tactic that the Guardian and BBC have indulged in, so as to reduce the Untermensch ‘tax avoider’ to the level of crook, cheat, and charlatan. We see it clearly in the tarnishing of efficient tax planning as a ‘loophole’ or ‘lacuna’ – as if the law tolerates it begrudgingly but only until ‘the loophole is closed’.
The word ‘leak’ is wildly duplicitous, implying, as it does, that the information has been provided by some publicly spirited whistleblower, eager to expose wrongdoing. This information was not ‘leaked’, it was stolen. It was deliberately removed from its secure location by criminals. This is not the action of some conscientious individual alerting the public to imminent danger. It is the unlawful theft of personal data by persons unknown, spurred on by an irresponsible press that has now created the conditions for a trade in misappropriated data.
Similarly, media dress their victims in the garb of the underhand shadowy villain – as when the BBC says ‘The files expose how some of the most powerful people in the world – including more than 330 politicians from 90 countries – use secret offshore companies to hide their wealth.’ Confidentiality, therefore, becomes ‘secrecy’, and success becomes ‘power’ – words that give the reader reassurance that the Guardian and BBC has no interest in the likes of us, only them the Untermenschen who suffer no pain let alone deserve our sympathy.
Ultimately, they resort to good, old-fashioned xenophobia – that tried and trusted method of the right-wing propagandist – as when they report that Johnny Foreigner is using offshore funds to buy property in the UK. This revelation – that poor, vulnerable buildings housed in Blighty have been purchased legally using legal means by legal persons for legal purposes – is yet more grist to the xenophobic mill that the right-wing press and the Brexiteers just love to revel in. We also learn that Sir Philip Green, the perennial Pantomime villain, is also guilty of using his legally obtained wealth to legally purchase property using legal means of doing so.
The press may think that these unlawful disclosures are necessary in the fight for social justice but the only sort of justice on display here is that of the mob, as when comedian Jimmy Carr was cowed into apologising for using lawful methods to manage his tax liabilities efficiently
What the BBC and Guardian fail to analyse or even mention is the manifest legal wrong they have committed in taking the benefit of criminal wrongdoing (thus further encouraging the wrongdoers) and then disseminating the fruits of crime.
For, no matter what good intentions might be ascribed to the BBC and the Guardian there is no legal justification for this flagrant breach of confidence. Such a breach takes place where the information acquired has the ‘necessary quality of confidence about it’, has been imparted in circumstances of confidence, and has been used without authorisation. Stolen financial information of this magnitude so easily satisfies the definition that no sensible lawyer would even think to contest the breach. It is a classic open and shut case.
In order to justify reading this stolen material and disseminating some of it to the public, the Guardian and BBC, must establish that disclosure was a necessary and proportionate interference with the obligation of confidence owed to those whose confidential information has been stolen: that it was in the “public interest”. This simply cannot be done in a case where 11.9 million files containing records of transactions which are overwhelmingly lawful, which disclose no wrongdoing of any kind. This is something that no law enforcement body in the world could do (except perhaps in China) – even with the benefit of a judicial warrant.
This point is never addressed but the answer is clear: there is no justification for such an intrusion into confidentiality. What exactly could justify this clear and egregious breach of the law? Where is the public interest in championing, at best, and sponsoring, at large scale criminal hacking?
As we have seen, the majority of their coverage has been devoted to revealing legal financial transactions. There is no public interest in this sort of exploitative, meddlesome prying. Even if we allow for the fact that the press has, through clandestine and entirely disproportionate means, discovered some evidence of illegality, as both the Guardian and BBC hint that they have, this would not justify this gross misuse of confidential information. For, as Griffiths LJ said, in Lion Laboratories v Evans [1985] QB 526, it would be necessary to demonstrate that the iniquity is such as to make it vital the confidential information is published directly to the public. As was recognised in Francome v Mirror Group Newspapers Ltd [1984] 1 WLR 892, the press are peculiarly susceptible to mistaking the public interest for its own commercial interest in turning a profit through sensationalism. As that Court said, there is no public interest in disclosing directly to the public information that should be disclosed to the relevant authorities. The press are not the police; the public are not the judiciary. It would be different, perhaps, if there was evidence of some massive state conspiracy to protect lawbreakers from criminal sanctions, but that scenario is far removed from what is happening here.
Instead, the public interest, such as it is, is firmly in holding these journalists accountable for their wrongdoing in profiting from what appears to be well-orchestrated, international criminal activity. The BBC and the Guardian are guilty of aiding and abetting what appears to be large scale organised criminal hacking. They delight in that complicity. They think themselves impervious to the legal consequences of their actions. Through its publication of the Panama Papers, Paradise Papers, and the Pandora Papers, the media have created demand in a market where hackers are encouraged to continue pilfering and peddling private and confidential information. For now, this action is condoned as a consequence of the successful othering that the BBC and the Guardian have helped engender.
Yet we, the public, are also complicit. We permit, through our quaint intuition that the press is, somehow, our defender, the falsehood to persist that the press, in disclosing information like this, is serving the public interest. Nothing could be further from the truth. The press is not serving the public, it is not deputising for the police. It is not acting as a proxy for police power by prosecuting the commission of crime. It is not doing these things because as it demonstrates, time and again, it lacks those robust frameworks of accountability that characterise public institutions. The press acts only to serve its own interest. Let us abandon this naïve fantasy that the press is a public watchdog, some virtuous fourth estate. It is no such thing.
There are, of course, strong arguments in favour of reforming the international tax system, for greater transparency and tighter restrictions on the use of offshore companies. But the way to bring this about is not through an opaque reliance on the fruits of criminal hacking. Open transparent tax rules should be campaigned for in an open, transparent fashion, articulating the public interest arguments in favour. This the BBC and Guardian have wholly failed to do
Paul Wragg is Professor of Media Law, at the University of Leeds and co-host of @medialawpodcast.