House of Commons - Culture, Media and Sport

Select Committee on Culture, Media and Sport Seventh Report

3 NEWSGATHERING

14. The work of the investigative reporter in uncovering malpractice relies upon the ability to gather information from a wide variety of sources. Under certain circumstances, recognised in the Editors' Code of Practice and indeed under the law, it may be deemed to be in the public interest to use procedures which go beyond what is normally acceptable. This section of the report examines two cases where the validity of certain newsgathering methods has been called into question.

CONTROLS UNDER THE LAW AND THE CODE OF PRACTICE

15. Obtaining information by subterfuge, clandestine devices or interception of communications is a breach of Clause 10(i) of the Code of Practice except when carried out in the public interest.[17] Such activities are, however, likely to be in breach of the Regulation and Investigatory Powers Act 2000 unless carried out with lawful authority. No public interest defence is available under the 2000 Act, although it is possible that the public interest value of information obtained illegally could be weighed in any decision by the Crown Prosecution Service on whether or not to proceed with a prosecution against a journalist.

16. Further controls exist under section 55 of the Data Protection Act 1998, under which "a person must not knowingly or recklessly, without the consent of the data controller (a) obtain or disclose personal data or the information contained in personal data, or (b) procure the disclosure to another person of the information contained in personal data". The penalty for breach of section 55 is a fine of up to £5,000 in a magistrates' Court or an unlimited fine in the Crown Court. The Act does, however, provide a number of defences, including that "the obtaining, disclosing or procuring was necessary for the purpose of preventing or detecting crime", or "that in the particular circumstances the obtaining, disclosing or procuring was justified as being in the public interest". The Information Commissioner told us that the public interest defence under the Data Protection Act was robust and that his Office "would not dream of prosecuting, let alone a court convicting" if a journalist could show that information had been gathered without consent but that doing so was in the public interest.[18]

The Goodman case

17. Clive Goodman was the former royal editor of the News of the World and a full-time member of staff at the paper. Together with a private investigator, Glenn Mulcaire, Mr Goodman illegally accessed voicemail messages left for members of the Royal Family and other high-profile figures, and used the information gathered to construct news stories. In January 2007, both Mr Goodman and Mr Mulcaire were convicted of conspiracy to intercept communications without lawful authority. Both received custodial sentences, four months' imprisonment in the case of Clive Goodman, six months in the case of Glenn Mulcaire. The Editor of the News of the World, Andy Coulson, accepted that he took ultimate responsibility for Mr Goodman's actions and resigned. The press world claimed to be shocked at the offences, and no witness attempted to defend Mr Goodman's actions. The Editors' Code Committee described his case as "a clear breach of both the law and Code" and noted that the strength and validity of the Code in that area was not at issue.[19]

18. Witnesses representing the press maintained that such practices were not, however, widespread, and that one bad apple did not mean that the whole barrel was rotten.[20] Mr Horrocks, Editor of the Manchester Evening News, said that in his four years as a member of the Press Complaints Commission, he could recall only one complaint under the heading of privacy involving the publication of private e-mails.[21] The PCC said that it was very rare for journalists or editors to flout the rules deliberately.[22]

19. Bearing in mind editors' responsibility to take care that the Code of Practice is observed by their staff and external contributors,[23] the PCC wrote to Mr Colin Myler, the new editor of the News of the World, in February 2007, seeking information about the nature of Mr Mulcaire's employment and asking what steps had been taken to ensure that such practices could not recur. In reply, Mr Myler acknowledged that Mr Mulcaire had been paid a retainer of nearly £105,000 a year for his work for the paper, much of which involved searches through records and databases in the public domain. Mr Hinton, Executive Chairman of News International, confirmed to us that both the prosecutor and the judge at the trial had accepted that these activities were "legitimate investigative work". He added, however, that there had been "a second situation" in which Mr Goodman "had been allowed a pool of cash to pay to a contact in relation to investigations into Royal stories".[24] Indeed, Mr Myler told the Commission that Mr Mulcaire had received cash payments amounting to £12,300 between November 2005 and August 2006. These payments were made by Mr Goodman, who claimed to the paper that they were "for a confidential source on royal stories" whom he identified only as "Alexander". The Commission was told that "the identity of that source and the fact that the arrangement involved illegally accessing telephone voice mails was completely unknown and, indeed, deliberately concealed from all at the News of the World".[25]

20. The News of the World also stated that it had taken steps to emphasise to external contributors (as opposed to core employed staff) that they were required to comply with the Code of Practice. Contracts with external contributors would henceforth include a clause specifying that it was the contributor's responsibility to review the Code of Practice and to ensure that he or she was conversant with any changes to the Code and to observe them fully. The editor had also written to all staff journalists to inform them that their contracts of employment would now include a clause requiring the employee to "comply in full" with rules and policies including the Press Complaints Commission Code of Practice. Mr Hinton told us that employees at News International were being required to attend seminars at which the limits of the law were spelt out, as was the fact that any judgment that the public interest "might warrant some stepping over the line [had to] be authorised by the editor at the very least".[26] In addition, tighter protocols have been introduced at the News of the World to govern cash payments, including a requirement for a "compelling and detailed justification" to accompany each request for cash payment, and a further requirement to supply the Managing Editor's office with a memorandum detailing the reason for making any payment to a confidential source.[27]

21. We note the assurances of the Chairman of News International that Mr Goodman was acting wholly without authorisation and that Mr Coulson had no knowledge of what was going on. We find it extraordinary, however, that the News of the World was prepared to apply one standard of accountability to the £105,000 retainer paid to Mr Mulcaire and another, far weaker, standard to the substantial cash payments paid to Mr Mulcaire by Mr Goodman. The existence of a "slush fund" effectively can only further the belief that editors condone such payments—on a "no need to know" basis—as long as they provide good copy. Self-regulation must require vigilance by editors, otherwise the impression may be given that editors will turn a blind eye as long as good stories are the result, a practice of which at least some editors are guilty, according to the General Secretary of the NUJ. We also find it extraordinary that in their investigation into the case the PCC did not feel it necessary to question Mr Coulson on these points.

22. The events leading to the conviction of Clive Goodman amounted to one of the most serious breaches of the Code uncovered in recent times. We are in no doubt that the Editor of the News of the World was right that he had no choice but to resign. By doing so, a clear message has been sent that breaches of this kind cannot be tolerated and that editors must accept final responsibility for what happens on their watch.

23. We explored with witnesses representing the Daily Mail and the Mirror Group editorial controls over expenditure by investigative reporters. Mr Esser, Executive Managing Director at the Daily Mail, said that it was not standard procedure at the Daily Mail for journalists to have access to such funds without having to account for them.[28] Mr Duffy, Group Managing Editor at MGN Ltd, assured us that invoices for payment to agencies would "not just get paid blindly" but would, if they looked "unusual", be challenged.[29]

24. Paul Horrocks, Editor of the Manchester Evening News, told us that if, when preparing a story, "a grey area" emerged (for instance about newsgathering methods), "a journalist of at least assistant editor level contacts the PCC before publication to discuss the issue with an officer and seeks guidance on how to proceed". He said that decisions on whether or not to invoke a public interest exception under the Code of Practice would be taken by the Editor alone, and only in exceptional circumstances.[30]

25. The Press Complaints Commission endorsed the subsequent actions taken by the News of the World and welcomed the seriousness with which the new editor had approached the matter. It has drawn up a series of recommendations as part of fresh guidance on the use of subterfuge and newsgathering, including the following:

Contracts between newspapers and magazines and external contributors should contain an explicit requirement to abide by the Code of Practice;
A similar reference to abide by the Data Protection Act should be included in contracts of employment for staff members and external contributors;
Although contractual compliance with the Code for staff journalists is widespread, it should without delay become universal across the industry;
Publications should review internal practice to ensure that they have an effective and fully understood "subterfuge protocol" for staff journalists. This should include who should be consulted for advice about whether the public interest is sufficient to justify subterfuge;
There should be regular internal training and briefing on developments on privacy cases and compliance with the law; and
There should be rigorous audit controls for cash payments, where these are unavoidable.

26. We welcome the steps that have now been taken by the News of the World to introduce more stringent controls over cash payments by its staff. The recommendations on newsgathering methods issued in May 2007 by the Press Complaints Commission should be adopted as a matter of course by all newspaper and magazine publishers.

Operation Motorman

27. We turn now to Operation Motorman, an investigation undertaken by the Information Commissioner's Office into apparent offences under data protection legislation. The operation centred upon the activities of a particular private investigator, Stephen Whittamore, at whose home were discovered numerous records of transactions involving data illegally obtained from British Telecom, DVLA and the Police National Computer. The Information Commissioner published a report in May 2006—What price privacy?—which noted that the primary documentation seized at the premises included correspondence (such as invoices) between the private investigator and "many of the better-known national newspapers [...] and magazines". In almost every case, the individual journalist seeking the information was named in the correspondence.[31] A follow-up report (What price privacy now?), published in December 2006, included a table showing the publications concerned and the number of transactions linked to journalists working for each publication. The table includes weekday and Sunday tabloids, Sunday broadsheets and high-circulation weekly magazines and is reproduced overleaf.[32]

Source: What price privacy now? Information Commissioner's Office, December 2006, HC 36,page 9.

28. Operation Motorman did not, however, lead to high-profile convictions. Parallel investigations by the police led to charges of corruption against four people: these took precedence over the Operation Motorman cases. Some convictions were secured, both for corruption and for data protection offences, but the court was able to impose nothing stronger than a conditional discharge "because of sentencing in a connected but separate case". The Information Commissioner's Office described this as "a great disappointment", especially as it "seemed to underplay the seriousness of the offences under section 55" of the Data Protection Act.[33] Because of the seriousness of this case, we asked the Information Commissioner for supplementary evidence about the prosecutions, which is printed with the written evidence in this volume. As a consequence of the light sentence, counsel advised the Information Commissioner that it would not be in the public interest to proceed with further prosecutions, for instance against journalists named in the correspondence discovered at the investigator's house, and that to do so would "attract severe criticism within the court system".[34] The Information Commissioner's Office, despite having in its possession what the Commissioner called "hard prima facie evidence" of invoices to newspaper proprietors, accepted counsel's advice.

29. Whereas the actions of Clive Goodman and Glenn Mulcaire resulted in custodial sentences and were widely denounced throughout the industry, there has been rather less sign of concern from within the industry at the possibility that journalists might have systematically obtained information illegally through the transactions uncovered by Operation Motorman. The Newspaper Publishers' Association, the Scottish Newspaper Publishers' Association, the Newspaper Society, the Scottish Daily Newspaper Society, the Periodical Publishers Association and the Society of Editors made a combined response to the Information Commissioner's recommendations in What price privacy?, stressing that they took the issues reported in the report very seriously and agreeing to disseminate the report's findings and the Commissioner's guidance on the terms of the Data Protection Act to their members.[35] The Press Complaints Commission published a guidance note and agreed to reiterate the message that journalists had to act within the law (such as the Data Protection Act). [36]

30. The Information Commissioner said, however, that he was "a little disappointed that there was not a more strident denunciation of the activity" by the Press Complaints Commission.[37] He had proposed to the Editors' Code Committee that the Code should be amended so that it would specify that it was unacceptable either to obtain information about an individual's private life without their consent by payment to a third party or by impersonation or subterfuge, or to pay an intermediary to supply any information which was, or which must have been, obtained by such means. In its submission to this inquiry, which predated the consideration of the Information Commissioner's proposal, the Code Committee suggested that the proposed wording seemed to go beyond the law by treating the obtaining of any private information, not just protected data (as defined under the Data Protection Act 1998) as a breach of the Code. The Code Committee also noted the implication that payment should be a determining factor, and it questioned whether an intrusion of privacy would be any the less had payment not been made.[38] The Code Committee has since considered and rejected the Information Commissioner's proposal, but it drafted an alternative wording which has since been ratified by the PCC and which will come into effect from 1 August 2007. While the Code Committee was in no doubt that illegal trading in confidential information and engaging in misrepresentation or subterfuge via agents or intermediaries was already covered by the Code, the new wording of Clause 10 makes it explicit.[39]

31. We raised the issue of the transactions listed in the table in What price privacy now? with representatives of some of the publications identified. Mr Esser, Executive Managing Editor of the Daily Mail, claimed that "very vigorous moves" had been made by the paper since the Information Commissioner had published his findings "to make sure that our daily practice conforms with the Data Protection Act".[40] Mr Duffy, speaking on behalf of the Mirror Group, also stressed the efforts which had been made to reinforce their journalists' understanding of the gravity of breaches of data protection legislation and of the Code of Practice.[41] But there was little or no sign of any real effort being made to investigate the detail of individual transactions between journalists and the private investigator concerned. Mr Esser told us that all journalists at the Daily Mail had been asked whether or not they had employed the services of the investigator at the centre of Operation Motorman, and if so, for what reason.[42] According to Mr Esser, many of the journalists were no longer working for the paper and there was "no way in which they can remember what happened five years ago"; he said that all 400 of the Daily Mail's journalists had been asked if they employed the services of this agency and that those that could remember had given assurances that they were seeking information which was in the public domain.[43] Both Mr Esser and Mr Duffy maintained that they would be able to pursue more rigorous inquiries if the Information Commissioner were to provide them with details of the names of the journalists involved and the invoices or details of transactions.[44] While this may be the case, we find Mr Esser's evidence difficult to believe.

32. The press in general, and evidence from the representatives of the Daily Mirror and the Daily Mail in particular, pointed out that the evidence collected by Operation Motorman did not necessarily establish any breach of the law or of the Code of Practice by journalists and that the transactions involved might have been specifically to obtain information in the public interest.[45] The Press Complaints Commission also cast doubt upon the value of the evidence presented, describing the list of publications and journalists in What price privacy now? as "impressive-sounding but superficial".[46] The Commission Chairman told us that he had invited the Information Commissioner to provide more details about the 305 cases listed in the report but that the Information Commissioner was not willing to do so.[47] When we raised this issue with the Information Commissioner, he told us that he and his staff "do not feel able to identify the individual journalists in fairness to those journalists" as they had not been prosecuted, and that "to bandy their names around in public or to their employers" would not be acceptable. He also acknowledged that the focus of the prosecutions had been upon the middlemen rather than the journalists. [48]

33. We are not convinced that the Information Commissioner should feel debarred from releasing to their own employers the names of individual journalists identified in invoices obtained under Operation Motorman. In any case, we do not see the Information Commissioner's decision as a valid defence for newspaper editors, some of whom seem to have made minimal effort to establish whether their employees had obtained information illegally (or whether they had done so ostensibly in the public interest but without having secured the necessary authority). The fact that an agency which was regularly accessing databases illegally was being used by journalists throughout the industry, without any apparent questioning from editors, is very worrying. We find claims that all of the transactions involving journalists were for the obtaining of information through legal means to be incredible and it is a matter of great concern that the industry has not taken this more seriously. The lack of any prosecutions or convictions of journalists is no defence. One of the principal arguments for self regulation is that it is more effective than statutory controls. If the industry is not prepared to act unless a breach of the law is shown to have occurred already then the whole justification for self-regulation is seriously undermined. If self-regulation is to continue to command confidence and support, editors will need to be seen to be pro-active in investigating any potential breach of the Code of Practice.

The law as a deterrent

34. The Information Commissioner recommended in What price privacy? that a custodial penalty should be available for offences of obtaining, disclosing or procuring information unlawfully under section 55 of the Data Protection Act 1998. His rationale for doing so was that the seriousness of the offence needed to be underlined by a sentence which carried a greater deterrent effect, and he noted that a similar offence of unlawful disclosure of confidential information under the Identity Cards Act 2006 attracted a potential custodial sentence.[49]

35. The Department for Constitutional Affairs took up the Commissioner's proposal and launched a consultation in July 2006, inviting views on whether a custodial sentence should be introduced. This resulted in 63 submissions, the majority of which were in favour,[50] although the print media industry in general was opposed (as was the Press Complaints Commission), citing fears that a custodial sentence would "chill investigative journalism" and that journalists would not be able to rely upon a public interest defence as it was not always possible to prove that a public interest had existed at the outset of an inquiry.[51] The Information Commissioner, however, told us that "any serious investigation which can be remotely justified as being in the public interest will not be deterred or chilled by this law", and he suggested that any responsible journalist who was contemplating paying for or obtaining information could simply make a file note stating that he or she was obtaining the information for specified public interest reasons and that "that would be a very strong piece of paper to wave in the face of any commissioner investigating and possibly prosecuting later".[52] When the DCA published the conclusions of its consultation in February 2007, it announced that it intended to go ahead with the reform and bring forward the necessary legislation when an opportunity arose in Parliament.[53] We note that the Ministry of Justice has taken that opportunity, by including relevant provisions in the Criminal Justice and Immigration Bill presented to Parliament on 26 June 2007.

36. We believe that sufficient safeguards exist to protect legitimate investigative journalism and do not believe that the introduction of custodial sentences for offences under section 55 of the Data Protection Act 1998 would have the chilling effect claimed by the press. Given the evidence that breaches of the Act have not been treated with the seriousness which they warrant, we therefore support the decision of the DCA, and subsequently the Ministry of Justice, to introduce the necessary legislation.

17 See paragraph 7 of this Report Back

18 Qq 36 and 38 Back

19 Ev 24 and 28 Back

20 Q 56 Back

21 Ev 32 and Q 85 Back

22 Ev 49 Back

23 Ev 63 Back

24 Q 91 Back

25 See New Guidelines on subterfuge and news-gathering on the Press Complaints Commission website:http://www.pcc.org.uk Back

26 Q 90 Back

27 See New Guidelines on subterfuge and news-gathering on the Press Complaints Commission website: http://www.pcc.org.uk Back

28 Q 106 Back