A report by the Information Commissioner (What Price Privacy Now?) states that the Information Commissioner’s investigation into the organised trade in confidential information (Operation Motorman) has revealed that 31 publications dealt with a firm of private investigators based in Hampshire.
This report comes at the time when the former royal editor of the News of the World, Clive Goodman, and a private investigator, Glen Mulcaire, await sentence for plotting to intercept the Prince of Wales’ voicemail messages.
The Daily Mail tops the Information Commissioner’s list with 952 transactions positively identified and although the list heavily features tabloid newspapers, certain magazines and broadsheets are also identified. The other publications listed are: Sunday People, Daily Mirror, Mail on Sunday, News of the World, Sunday Mirror, Best Magazine, Evening Standard, The Observer, Daily Sport, Sunday Times, The People, Daily Express, Weekend Magazine (Daily Mail), Sunday Express, The Sun, Closer Magazine, Sunday Sport, Night and Day (Mail on Sunday), Sunday Business News, Daily Record, Saturday (Express), Sunday Mirror Magazine, Real Magazine, Woman’s Own, Daily Mirror Magazine, Mail in Ireland, Daily Star, Marie Claire, Personal Magazine and Sunday World.
The Data Protection Act 1998 makes it an offence to obtain, disclose or procure the disclosure of personal information knowingly or recklessly, and offences are punishable by a fine up to £5,000 in the Magistrates’ Court and on unlimited fine in the Crown Court. Exceptions are permitted where the obtaining, disclosing or procuring of the information is in the public interest. However, very little of the content of a number of these tabloids and magazines could be considered to be in the public interest in the legal sense, and it is difficult therefore to believe that this defence would often be available to these tabloids and magazines.
The Initial Report
The Information Commissioner’s initial report (What Price Privacy?), published in May 2006, sought to tackle the illegal trade over the last 6 months by raising awareness of the problem, recommending the increase in the penalty for offences to a term of imprisonment not exceeding 2 years, and by calling for key players and influential bodies to take steps to reduce demand. The Information Commissioner’s objectives are progressing, although some with greater speed and force than others.
Over the past 6 months 32 national press articles have featured the report and highlighted the widespread illegal trade in personal information. Trade and regional press coverage has also been extremely encouraging with 54 trade and 43 regional articles mentioning the report. It has also been covered by the broadcast media including Five Live, the Today programme, BBC Breakfast, the lunchtime and evening news and BBC regional stations.
On 24 July 2006 the Department for Constitutional Affairs launched the Government’s consultation “Increasing penalties for deliberate and wilful misuse of personal data” and its findings acknowledge that the current penalties are not sufficiently strong to deter the illegal trade.
The Reaction of the Press Complaints Commission
The Information Commissioner said in What Price Privacy Now? that the Press Complaints Commission (PCC) has confirmed that journalists must act within the law, having regard to the Data Protection Act and to the proper use of the public interest exemption if they wish to rely on this. The Information Commissioner has engaged directly with the Chairman and Secretary of the Code of Practice Committee of Editors on the subject of amending their Code. The Code is drafted by editors themselves, binds all national and regional newspapers and magazines and regulates the way in which news is gathered and reported. The Information Commissioner suggested making it clear that it is unacceptable, without an individual’s consent, to obtain information about their private life by bribery, impersonation, subterfuge or payment for information clearly obtained by such means. Unfortunately, no concrete proposals have been brought forward yet.
The Commissioner also raised the possibility of the PCC producing further guidelines for journalists with the assistance of his office. The Code of Practice Committee of Editors has indicated its support for the production of clear guidance for the attention of senior management in the industry. The guidance would be included in the Editor’s codebook which supplements the Code and would be posted on the Editor’s Code website. The Committee has not agreed to amend the Code as suggested by the Information Commissioner. However, the Committee has indicated that it will keep the Code under review and that the Information Commissioner can put forward a suggestion for a change to the Code through the usual channels. The Commissioner has written to the Code of Practice Committee to reiterate his suggested change to the Code.
In summarising the progress made after 6 months the Information Commissioner stated that “overwhelmingly the responses indicate support for the proposals and many organisations have taken steps of their own to raise awareness and tighten security as well as more generally condemning the illegal trade. The majority of the responses and steps taken are to be commended and clearly demonstrate an understanding and commitment to deal with this problem. A few responses have been less encouraging. Here my office will continue to raise awareness and develop support for our proposals.”
Press Reaction to the Report
Perhaps unsurprisingly, Associated Newspapers which publishes the Daily Mail, the Mail on Sunday and The Evening Standard, said that the report “was utterly meaningless” as it was based on the activities of just one supplier. “Associated Newspapers, in common with all newspapers and broadcasters – and many other organisations, including lawyers – use search agencies to obtain information entirely legitimately from a range of sources. In addition, the law specifically makes provision for journalists making enquiries in the public interest. Since the Information Commissioner first raised his concerns Associated Newspapers has repeatedly stressed to all its journalists that they must observe the law when seeking information.”
There are a number of remarkable aspects of the Daily Mail’s comment. The first is that to observe that the Information Commissioner’s report was meaningless because it was based on the activities of only one supplier carries with it the clear implication that there are a number of other suppliers (presumably for Associated Newspapers as well as the remainder of the press) that supply such information. If Associated Newspapers does have additional sources of confidential information this is hardly reassuring.
Conspicuously absent from their comment was any denial that the legal stipulations concerning the use of confidential information had been complied with by Associated Newspapers. Despite Paul Dacre being one of the PCC Commissioners, Associated Newspapers does not have a good record of respecting the legal protection provided for confidential and private information, as the recent judgment of the Court of Appeal in the case brought against it by the Prince of Wales indicates.
Finally, it is striking that there are no broadcasters who have fallen foul of the Information Commissioner’s report. This is doubtless because unlike the virtually non-existent regulation of the print press by the PCC, Ofcom does exercise a degree of restraint over the broadcast industry. Surely it is now time for the anomaly that permits the print press such licence to be removed.