Written evidence submitted by the Information
Commissioner's Office
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? ".
July 2009
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