Written evidence from the Information Commissioner's Office (PS 110)
1 The Information Commissioner has been asked to submit written evidence to the Committee's inquiry into press standards, privacy and libel regarding "the implications of the allegation that phone tapping was widespread, the knowledge of the Information Commissioner's Office (ICO) about the police and CPS investigation and what action the Commissioner now plans to take". As members will know, the previous Commissioner Richard Thomas gave oral evidence to the Committee on 6 March 2007 about the practice of 'blagging', where private investigators obtain personal information from confidential databases either by deceiving the holders of the databases as to their identity and purpose or by paying corrupt employees for the information. In such cases private investigators could be acting on behalf of journalists but the media are certainly not the only ones behind this unlawful trade.
2 It is important to distinguish between the practice of 'blagging' and the interception of communications ('phone tapping') which is at the heart of the Goodman case. Blagging was the subject of two reports to Parliament by the Information Commissioner, "What Price Privacy?" and "What Price Privacy Now?". As blagging involves unlawful access to personal data held by an organisation, it is regulated by the Data Protection Act 1998 (DPA) and comes within the scope of the Information Commissioner's regulatory powers. Section 55 of the DPA makes blagging a criminal offence. The offence currently carries a maximum sentence of a fine of £5,000 in a magistrates' court or an unlimited fine in the Crown Court. In his reports to Parliament the then Commissioner argued that the possibility of a prison sentence was needed to act as a deterrent to those involved in this unlawful trade in personal information. Section 77 of the Criminal Justice and Immigration Act 2008 (CJIA) subsequently included provision for a sentence of up to two years. However this provision cannot come into effect until the Secretary of State makes a relevant order. The Commissioner is not aware of any plans by the Secretary of State to make such an order.
3 The interception of communications is regulated by the Regulation of Investigatory Powers Act 2000 (RIPA). Unlawful interception is a criminal offence under this Act; but this offence does not come within the scope of the Information Commissioner's powers. It is the police who investigate RIPA offences and the CPS who prosecute.
4 The implications of the allegation that phone tapping was widespread: For the reasons outlined above the direct data protection implications are limited. It is likely that personal information that has been obtained by phone tapping will, if held electronically, be held in breach of the data protection principles because it has been obtained unlawfully. The first data protection principle requires that personal data are processed "fairly and lawfully". However a breach of the principles is not a criminal offence and the ICO would give way to the police in any investigation where both criminal offences under RIPA and civil breaches of the data protection principles come into play.
5 The use of phone tapping does though illustrate the lengths that some journalists are prepared to go to in obtaining access to confidential personal information. It demonstrates that the type of unacceptable behaviour outlined in "What Price Privacy?" is not confined to the practice of blagging. Furthermore it draws attention to the disparity of sentencing possibilities in that phone tapping is an imprisonable offence whereas blagging is not. The Information Commissioner remains convinced that the penalties available for conduct of this nature, whether in the form of phone tapping or in the form of blagging, need to be custodial ones if they are to have the desired deterrent effect.
6 The knowledge of the Information Commissioner's Office about the police and CPS investigation: The Commissioner became aware of the police investigation into phone tapping through media reports. The ICO contacted the police who agreed to keep the ICO informed of progress in their investigation. The ICO was made aware that the investigation had uncovered evidence to suggest that the voice mails of other celebrities in addition to Prince William might have been intercepted. The ICO did not take any part in the investigation. Our only involvement was to advise police on how they themselves should handle personal information uncovered in the course of the investigation so as to remain in compliance with the DPA.
7 What action the Commissioner now plans to take: The Commissioner will continue to monitor the commission of blagging offences involving journalists and others and to bring prosecutions where the circumstances justify this. It is though important to bear in mind that there is a defence available where any blagging can be justified "as being in the public interest". From the evidence currently available to the ICO it appears that this illegal trade in personal information has diminished since the publication of "What Price Privacy?" and "What Price Privacy Now?", but it has not gone away. If the trade builds up again the Commissioner will consider making a formal request to the Secretary of State to use his order making power under the CJIA to bring in custodial sentences. The recent reports of phone tapping by print journalists would be used to support any case the Commissioner might need to make.
8 The Commissioner would be pleased to provide further assistance to the Committee in so far as he is able to do so. There is though not much more that he can usefully add on the practice of "blagging" to the information published in "What Price Privacy?" and "What Price Privacy Now?".