But when is it lawful, and how do we stop it in the future?
Clive Goodman, the Royal Editor of the News of the World, has pleaded guilty to offences under two statutes for plotting to intercept private phone messages involving the Royal Family. The judge (Mr Justice Gross) has warned him and his fellow conspirator (Glenn Mulcaire) that “all options are open” so far as punishment is concerned because “It is an extremely serious matter”. Mr Goodman therefore faces the possibility of a jail sentence.
Sentencing will take place in January after probation service reports have been prepared. In a clear attempt to mitigate, their Barrister (John Kelsey-Fry QC) took the opportunity of their appearance at the Old Bailey today to make apologies on Mr Goodman’s behalf:
“Now that Mr Goodman has entered his plea of guilty, he wishes, through me, to take the first opportunity to apologise to those affected by his actions.
The prosecution case refers to a gross invasion of privacy and Mr Goodman accepts that characterisation of his acts. He apologises to the three royal members of staff concerned and to the principals, Prince William, Prince Harry and the Prince of Wales.”
Mr Goodman was arrested on 8 August after a police investigation into allegations of phone tapping at Clarence House. He was charged with eight counts of intercepting voicemail messages and one count of conspiring to intercept voicemail messages after staff at the Prince of Wales’ residence became suspicious after two of Mr Goodman’s stories in the News of the World in 2005 detailed extracts of private phone messages concerning Princes William and Harry. Anti-terror police investigated the allegations, searching Mr Goodman’s Putney home as well as properties in Chelsea and Sutton and the offices of the News of the World.
Mr Goodman now faces not only the possible end of his career as a journalist, but also a possible jail sentence. He has been suspended by the News of the World since his arrest in August this year, which was undertaken by officers of the Royal Protection Unit. He admitted conspiracy to intercept communications in order to get royal scoops for the News of the World.
The Response of the News of the World
The News of the World’s Editor, Andy Coulson, has said that he apologises “unreservedly” on behalf of the newspaper to Princes William and Harry and others amongst the Royal staff involved “for the distress caused by this invasion into their privacy”. He went on to say that “As the Editor of the newspaper, I take ultimate responsibility for the conduct of my reporters. Clive Goodman’s actions were entirely wrong and I have put in place measures to ensure that they will not be repeated by any member of my staff.”
The PCC Response
With no apparent sense of irony, Max Clifford has warned that such activity is an increasing threat to the privacy rights of the individual. The press and the PCC of course continue to resist vigorously any statutory protection of the right of privacy, and this of course is an example of where the obvious necessity for legislation is proven. If the PCC Code alone had been all that the Royal Princes had by way of protection, none of this activity would have come out – certainly the PCC would not have unearthed it. The Code itself is unfortunately too often honoured in its breach for it to be any kind of bulwark against infringements by the press of the privacy of individuals.
Mr Goodman has, however, acted in clear contravention of paragraph 10 of the Press Complaints Commission Code of Practice, which forbids such activity except where there is a clear public interest:
“Clandestine Devices and Subterfuge
- The Press must not seek to obtain or publish material acquired by using hidden cameras or clandestine listening devices; or by intercepting private or mobile telephone calls, messages or emails; or by the unauthorised removal of documents or photographs.
- Engaging in misrepresentation or subterfuge can generally be justified only in the public interest and then only when the material cannot be obtained by other means.”
Sir Christopher Meyer has quickly made a statement on behalf of the PCC on this issue in robust terms:
“The PCC and the editors’ Code of Practice are absolutely clear on the issue of phone message tapping: it is a totally unacceptable practice unless there is a compelling public interest reason for carrying it out. In this case, a crime has been committed as well – something which I deplore. The editor has now apologised to the parties concerned and made clear that steps will be taken to ensure that there will be no repeat. He has also already written to reassure me of his newspaper’s strong commitment to the Code of Practice, and to outline the measures that the paper takes – including continuous professional training and writing compliance with the Code into its journalists’ contracts of employment – to ensure that this commitment is reinforced. This reassurance is something that I welcome. The board of the Press Complaints Commission will now examine any material relevant to the industry’s Code of Practice that has come to light as a result of the prosecution, and will discuss the matter fully when it meets in December.” (emphasis added)
It is striking that Sir Christopher has stated that the public interest must be “compelling” to justify such activity. Hopefully his will not be lost on the press. This would, however, be more reassuring had he not (for example) told the Culture Media and Sport Committee on two occasions in May 2003 that so far as apologies and corrections were concerned in newspapers these should be “at least as prominent as the original transgression” – a reassurance which has proved to be of little value when tested in practice, including in particular the PCC’s own adjudications.
The Statutory Background
The charges faced by Mr Goodman are under two statutes. One is the Regulation of Investigatory Powers Act 2000, and the interceptions between 16 February and 16 June 2006 fall under that statute. The conspiracy charge under the Criminal Law Act relates to conspiring to intercept voicemail messages between 1 November 2005 and 9 August 2006.
The Regulation of Investigatory Powers Act 2000 makes it an offence for a person intentionally and without lawful authority to intercept any communication in the course of its transmission by means of a public telecommunication system (section (1) (1)) or a private telecommunication system (section (1) (2)). The definition of intercepting a communication under section 2 (8) of RIPA seems to cover recording a telephone conversation: “the cases in which any contents of a communication are to be taken to be made available to a person while being transmitted shall include any case in which any of the contents of the communication, while being transmitted, are diverted or recorded so as to be available to a person subsequently.”
When can a telephone call be recorded lawfully?
If a person intercepts a communication in the course of its transmission by means of a private telecommunication system then he is not criminally liable if he has the right to control the operation or the use of the system (section (1) (6) (a)), or he has the express or implied consent of such a person to make the interception (section 1(6) (b)).
This means that whether recording a telephone conversation without consent gives rise to criminal or civil liability will depend on the right of the interceptor to control the operation or use of the system. However, if a person intends to make the conversation available to a third party, they must obtain the consent of the person being recorded. Under RIPA it is a civil, not criminal, matter if a conversation or email has been recorded and shared unlawfully. If consent is not obtained from the other party in the conversation and the recording of the conversation is disclosed to a third party then it is possible that the tort of unlawful interception of communications under section 1 (3) of RIPA would be committed.
Under the Data Protection Act the position will depend on who the data controller of the recording is and what the purpose of the recording is, but recording a telephone conversation and passing on the recordings to third parties could be in breach of the data protection principles. The DPA protects personal data, which is defined as any information which relates to a living individual who can be identified from that information or from that and other information which is in the possession or likely to come into the possession of the data controller (section 1). Thus, personal data could include sound recordings if the individual was identifiable. If it does constitute personal data, then the data controller must ensure that the personal data is obtained and processed fairly in order to ensure compliance with the DPA. However, the BBC editorial guideline suggests that material acquired for journalistic, artistic or literary purposes is exempt if compliance with the DPA would frustrate the journalistic purpose.
The Broadcasting Code suggests that broadcasters can record telephone calls if they have, from the beginning of the phone call, identified themselves and explained the purpose of the call and that the call is being recorded for possible broadcast, unless it is justified in the public interest not to do one or more of these practices. If it becomes clear later that the recorded call will be broadcast, consent must be obtained from the other party unless it is warranted not to do so. Surreptitious recording can only be used if is warranted on the grounds that there is evidence of a story in the public interest, there are reasonable grounds to suspect that further material evidence could be obtained, and it is necessary to the credibility and authenticity of the programme.
Public Interest Defence
There does not appear to be a public interest defence or any civil cases that have dealt with this issue so far. However, it does seem to be practice within the industry that where there is a public interest it may be possible to record a conversation without informing the other party.
Ofcom suggests in its guidance to the rule that “Any infringement of privacy in programmes, or in connection with obtaining material included in programmes, must be warranted”, and that broadcasters must be able to show why in the particular circumstances of the case the infringement is warranted. If it is in the public interest, then the broadcaster should be able to demonstrate that the public interest outweighs the right to privacy. They list an example of public interest as exposing misleading claims made by individuals or organisations or disclosing incompetence that affects the public.
BBC guidelines state that “we should normally inform people at the start of a telephone conversation that we are recording the call for possible broadcast and obtain consent.” However, they also list exceptions such as secretly recording a phone call for broadcast. Their guidance for secretly recording a phone call for broadcast is to seek approval in advance from a senior editorial figure or for Independents by the commissioning editor and this “will normally only be authorised as an investigative tool, as a method of consumer, scientific or social research, or for comedy and entertainment purposes.”
Channel Four similarly states in its guidance that examples of a public interest which may justify an intrusion into a person’s privacy include detecting or exposing crime or serious misdemeanour, protecting public health or safety, preventing the public from being misled by some statement or action of an individual or organisation and exposing significant incompetence in public office. Channel Four guidelines also suggest that secret filming and secretly recording telephone conversations is allowable “when it is clear that the material so acquired is essential to establish the credibility and authority of a story and this is unlikely to be achieved using open filming and where the story is clearly of important public interest.” They also suggest that permission from the broadcaster’s most senior editorial executive should be sought before the secret filming and before it is broadcast.
What About the Future?
The boundaries of the rights given to individuals under Article 8 of the European Convention on Human Rights (incorporated in our law by the Human Rights Act) remain uncertain. Generally, it is the press which has invested funds in litigating those rights to the narrowest bounds possible. The necessity for clearly defined statutory protection of the individual could, however, not be more clearly evidenced than by this incident.
Mr Goodman and the News of the World are guilty of a gross invasion of privacy, and it is inconceivable that the Press Complaints Commission form of self regulation was ever going to unearth this activity. It is difficult to believe that if a complaint had been made to the PCC, either Mr Goodman or the News of the World would have admitted to these breaches. Even the Editor of the sister paper The Sun (Rebekah Wade) was the victim of a sting by the same conspiracies, and was apparently not aware of this activity. If senior Fleet Street individuals will not own up to such obvious legal and regulatory transgressions, even to their colleagues, then what hope is there that they will come clean to the Press Complaints Commission?
Doubtless the Government will remain silent in these circumstances, too fearful of a press backlash to accept the invitation of the appellate courts to step in and codify a privacy law the boundaries of which can be readily understood both by those it protects and those it restricts. Uncertainty of course favours the party better able to afford to invest money in legal fees – i.e. the press. While there is no comprehensive statutory protection for privacy, incidents like the exposure of Clive Goodman will be the exception rather than the rule, and the rights of the individual will go on being inadequately protected.