Press standards, privacy and libel - Culture, Media and Sport Committee Contents


Examination of Witnesses (Question Numbers 1820-1839)

MR CHRISTOPHER GRAHAM AND MR DAVID CLANCY

2 SEPTEMBER 2009

  Q1820  Paul Farrelly: What is new in the public domain.

  Mr Graham: But it is not evidence of what is going on now. What we have got is more information in the public domain legitimately or illegitimately of what was the case in 2006 when What Price Privacy? and What Price Privacy Now? were published. We have not got any further information to share with the Committee about journalistic practices now.

  Q1821  Paul Farrelly: That is not my question.

  Mr Clancy: I think it is fair to say in the Taylor case that a number of documents were obtained by Mr Taylor's representatives which, they believed, would assist them to evidence the fact that News International were carrying out, in effect, a new investigation against their client and that the means that they used potentially were unfair and in breach of the Data Protection Act. Therefore, I think it is something we would build in support of evidence and it would not be evidence in relation to the actual hacking.

  Q1822  Paul Farrelly: Can you tell us in what respects Mr Taylor's name features in the Motorman files?

  Mr Clancy: I cannot exactly name every piece of information that is in there, but there would have been obviously references to News International at some point seeking information in relation to Mr Taylor which would not be found in the public domain.

  Q1823  Paul Farrelly: What sort of information, from your knowledge?

  Mr Clancy: I cannot make a particular comment in relation to that, but obviously there is a massive amount of information there in relation to his legal representative seeking access to that information, and that was done via another department within our office, it was not the investigations team who managed that.

  Q1824  Paul Farrelly: Did the documents provide details of accessing the sort of information through means which would clearly seem to be illegal?

  Mr Clancy: I think clearly, if it was information which was contained within ledgers, it would be evidence to say, "This is the particular activity of journalists. They're obtaining information which cannot be obtained normally", such as vehicle registration details, telephone conversations, converting their telephone number into an address, ex-directory numbers.

  Mr Graham: What it does not contain is usually the technique used, though in one or two cases it does say on the face of the purchase order or the ledger log, "blag", but it does not say, "hack" or "tap". So we do not know how this information would have been obtained, except where it specifically says, "blag", which of course is just ringing up and pretending to be somebody else.

  Q1825  Paul Farrelly: But, just in respect of the Taylor case, which is one of the reasons why you are here again, there is evidence within the Motorman files of potentially illegal activity in relation to getting information connected, or to do, with Gordon Taylor?

  Mr Clancy: Yes.

  Q1826  Paul Farrelly: I just wanted to wrap up and just explore the reasons for not publishing the Motorman files in the public interest and whether you got this decision correct. Is it correct that individuals or organisations that have been targeted can only get that information now when they are being told by, in this case, a particular assiduous Guardian journalist? Is it satisfactory that people will only be able to get access to those records if they are generally determined or wealthy enough to take out a civil action and get court orders to instruct you to provide those details? Also, just in terms of the natural justice, have you considered whether your refusal to publish those, be it in redacted form, is undermining the process of press self-regulation? Let me give you an example from the latest article on Monday. In his article, Nick Davies talks of a case brought by, I assume it is a lady, Syrita Collins-Plante, "who complained to the PCC that The Sunday People had invaded her privacy and harassed her in search of a story about the boxer, Lennox Lewis, phoning her repeatedly until a police officer asked the newspaper to stop. The PCC ruled that her privacy had not been breached—without knowing that her private address and phone number had been blagged out of BT by Whittamore's network." Now, in other spheres that would count as a miscarriage of justice, so have you considered whether your refusal to publish the data, be it in redacted form or not, is actually undermining press self-regulation?

  Mr Graham: If I published it in a redacted form, it is of no use to man or beast. You could have pages and pages of material that you have already got from me, but it is supremely uninformative, so that does not help us. If I publish it in a non-redacted form, I am publishing personal information that the Data Protection Act is there to stop, so in sort of general terms of publication I am between a rock and a hard place. I am specifically charged under section 59 of the Data Protection Act under penalty of a criminal offence, myself as Information Commissioner, my predecessors and staff, if we make available information that we collect in the course of our duties, except for a lawful purpose, so the question then is: what is a lawful purpose? If you are confronted with a court order, that is manifestly a lawful purpose. Now, I am not saying everyone has got to go off and get a court order to have a look at this stuff. I have already said that we will follow the precedent that we have established with the consulting database and help people who may be worried about it. And you mentioned the former Minister, Mr Kilfoyle; I think I had better contact him and say, "Can we sort this out?" It does not have to be by court order if people have good reason to come along. I showed the Chairman the files the other day.

  Q1827  Paul Farrelly: Indeed, and how does that square with your duties?

  Mr Graham: Because it was for assisting a parliamentary committee and I thought that, once your Chairman had seen what we were talking about, he would see the difficulty that I was in. So it would not have to be by court order. But we are not playing games here. I have statutory responsibilities to do things and also not to do things. What the Information Commission has been concerned to do is to flag up the issue, as I have said. Now, in relation to self-regulation, I have just come from being Director General of the Advertising Standards Authority, which of course is a self-regulatory body, so I know about this sort of thing. I would not presume to tell the PCC what to do, nor do I know the circumstances of this case, but it is perfectly open to the PCC to go back to the titles who were defending that particular charge and say, "We think we've been misled and we want to have a look at this again" in the same way as this Committee is doing.

  Q1828  Paul Farrelly: But it is making decisions without the full knowledge of the facts. Can I just take issue with your assertion, Mr Graham, that a redacted form would be of no use to man or beast. Can I suggest that what would be very helpful in the public interest, it would certainly act as a very strong deterrent and it would allow those people in the general public, be they the man or woman in the street or public figures, to know whether they have been targeted and by whom, if you published the files in the following form: with the name of the journalist and the newspaper group involved, the kind of information requested, the person targeted, but not to the extent that the information is actually in the meticulous files kept by Mr Whittamore, and not the response to the information. That would be very helpful in the public interest and certainly would be very useful. It would mean that anybody bringing a complaint, for instance, the PCC, would know whether they have been targeted and the PCC would know it as well, just to take one example.

  Mr Graham: I just think that is not what I am here to do. If I listed the names of all the journalists, I am in danger of guilt through association. I do not know whether some of those journalists' enquiries, for example, the head of the list in the Guardian referred to The Observer, and I do not know whether The Observer was dealing in the tittle-tattle and sex life of some popstar or whether it was a major scandal involving Ministry of Defence contracts, but those names would be up there with people who were simply dealing with celebrity gossip, but, having considered this, perhaps I had better go away and consider it further. At first blush—

  Q1829  Paul Farrelly: I used to work for The Observer.

  Mr Graham: And they did tittle-tattle?

  Q1831  Paul Farrelly: I imagine The Observer did not do tittle-tattle and I imagine that the journalists, to the extent that they are still working for The Observer or are now working for other news organisations, will have their public interest defences there.

  Mr Graham: Is it not also a gross invasion of privacy, Mr Farrelly, to list all the subjects of enquiry? They may not want it placed in the public domain that they were. It might be, you know, "no smoke without fire", and we are talking about principals, their wives, their families, their girlfriends, their friend and family numbers, but this is just not what the Information Commission is here to do. We are here to stop the child benefit records going missing, we are here to help administer the Freedom of Information Act and we are here to deal with data-sharing between government departments. There is a lot to do and, if this Committee really wants me to devote the resources I should be spending on that to an after-the-event, line-by-line investigation of 17,000 pieces of paper, I think it is the wrong priority. What I want you to do and Parliament to do is to activate that section of the Act and introduce the custodial sentence. That will shut this down at a stroke. David, you were talking to one of these merchants the other day about it, were you not?

  Mr Clancy: Yes, we speak to private investigators quite a lot and we have had situations where, when executing a search warrant, we find information which has been unlawfully obtained and the individual turns round and says, "Maximum fine £5,000? I'll write the cheque out now". Alternatively, at this moment in time a section 55 offence is not a recordable offence, it does not appear on the PNC, but I had a PI phone me up the other day to say, "I've been convicted. Does it appear on the PNC because my wife wants to go to Florida with the kids to see Mickey Mouse and I don't want to go if I'm going to get stopped on the plane because it's a conviction?" I had to tell him that it is not recorded and it is up to him whether he declares it. If we had that custodial penalty, it is as simple as that, it is a deterrent and people will go and find employment elsewhere doing stuff where they cannot get a custodial penalty.

  Mr Graham: It is not just in this sort of sleazy world of husbands trying to find out what their wives are really worth in divorce proceedings, which is the one that is up on the site you mentioned at the moment, because the husband wants to reopen a consent order to get a better deal under the divorce settlement and he thinks his wife has been hiding assets from him. Charming stuff. But it is also things that interest the Serious Organised Crime Agency, SOCA, it is about witness intimidation, it is about jury-tampering. That is the sort of thing you can buy. Parliament, I think, was seduced by the siren voices of Fleet Street, saying that this was going to have a chilling effect on investigatory journalism, despite the fact that the journalist simply has to establish that the story was a serious story. I am not going to go after somebody who is doing something manifestly in the public interest, but I will go after people who play fast and loose with data protection legislation to no good purpose. I need that custodial sentence in place and I need it now.

  Q1830  Chairman: When you say that Parliament was seduced by siren voices, Parliament was not given an opportunity because, as we understand it, the Prime Minister received a call from Paul Dacre, Les Hinton and, I think, The Daily Telegraph, a sort of concerted lobby, and, as a result, the Government changed its policy.

  Mr Graham: Well, I think that the issue goes so much wider than journalism that a strong recommendation from this Committee might put some backbone into it.

  Q1831  Janet Anderson: I just wanted to pursue that, Mr Graham, and really a lot of the points I wanted to raise have been dealt with. The Chairman has said that he feels the Government did essentially what was a U-turn on this particular clause in the Criminal Justice and Immigration Bill which would have imposed a custodial sentence as a result of pressure from Fleet Street. Are you aware that that was the case, and do you know whether the ICO at the time strongly objected to that?

  Mr Graham: Well, the position of the ICO at the time is set out in What Price Privacy? and What Price Privacy Now? I am afraid we are getting into territory I cannot comment on because I simply was not there. I only started on 29 June and I was not concerned with the higher politics of all this.

  Q1832  Janet Anderson: But will you be lobbying the Government now that you are in post to restore that particular clause in some way because they have actually made it into a suspended clause and it is not quite clear what is needed to reactivate it? Will you be lobbying to make sure that it is reactivated?

  Mr Graham: Yes, I contacted the Ministry of Justice last night and said that this would be the burden of my song before the Committee, and I understand it would involve a ministerial order. I do not think it even involves further parliamentary consideration. It is designed to be there as a Sword of Damocles. The trouble is that the threat is a wasting asset. The extent to which everyone is on their best behaviour at the moment is, I think, because of the Goodman jailing and because of all the talk about custodial sentences. But anyone reading the papers today, seeing that you get £100 plus £100 costs and the judge regretting that he cannot do more is pretty much an invitation to get back to the old business, so I think we really do need to have that custodial sentence in place.

  Q1833  Janet Anderson: So you would like that to be a recommendation of this Committee to the Government that they reactivate that clause?

  Mr Graham: I would very much welcome that, and it would only be repeating what you said in your previous Report, that you were convinced that the custodial sentence was necessary.

  Q1834  Philip Davies: I understand your point about the custodial sentence, but, given that we do not seem to be able to keep murderers, rapists and even terrorists in prison, I think your chances might be slim, to be perfectly honest. Just on this point of deterrent, I was intrigued by your earlier answer to the Chairman about why you did not take any action previously, and the answer that you gave was that you were filing it under "Too difficult" or "Too time-consuming" perhaps, that there were 400 separate investigations you would have to carry out and, therefore, you just did not bother because there was too much to go at. Surely, whatever the penalties are, if something is taking place on such a wide scale that you cannot investigate it, it does not matter what the penalties are because nobody will ever be brought to justice anyway because, if it is so wide-scale, you are just going to file it under "Too time-consuming".

  Mr Graham: We are not filing it under "Too difficult" or "Too time-consuming". Every regulator you deal with has to make decisions and choices. The Better Regulation approach urges us all to be proportionate and to pick our battles. When I was at the Advertising Standards Authority, I used to be infuriated that the Office of Fair Trading were not always willing to pick up the cases I wanted them to pick up. You know, you have to make choices. The question of the penalty is its deterrent effect; it is the big stick in the cupboard. As David has said, if people have to factor that risk in, it is a business that it is not worth being in, and the example he gave was of somebody concerned that his criminal record would show up and that would even spoil the family holiday in Florida. The problem at the moment is that it is simply a business cost and you just write it off against expenses; it is peanuts. Now, we need the big stick in the cupboard. At the moment, all we have got in the cupboard is a sort of promissory note, saying, "If it happens again, we will send off for a stick". Now, that is not a deterrent. So, if we have the custodial sentence in place, then I confidently believe that the sort of operation we have been talking about of people dealing in confidential, personal information for no good purposes will stop at a stroke because it just will not be worth it, it will not be sufficiently profitable to make it worthwhile. At the moment, it is very profitable, thank you very much, and any fines you get in the magistrates' court you simply dock off as expenses.

  Q1835  Philip Davies: But what you said in your earlier answer seemed to indicate that, if somebody acts alone and there is one example of it, you will deal with it because there is only one to deal with and, if it is totally widespread and it is endemic across the whole board and there is so much of it, then you just have not got the resources to deal with it.

  Mr Graham: No—

  Q1836  Philip Davies: That appeared to be what you were saying.

  Mr Graham: No, Mr Davies, you are misrepresenting what I said. I said that it was so big, with 17,000 individual items, 305 journalists and Lord knows how many titles, that the appropriate response was to make a big issue of it, to produce formal reports to Parliament, to call for a change in the law, to get the PCC moving to call on the industry and so on and so on. That is how you can deal with information in the mass. Individual applications from individuals, saying, "Assist me with what you may or may not have got on the file", I can deal with. What I cannot deal with is going through forensically to the standard of proof to work in a court of law 17,000 particular instances and attaching them to stories and then working out whether the story was or was not in the public interest and working out whether my lawyers would be able to beat their lawyers. That simply would have been irresponsible given everything else that Parliament has charged the Information Commissioner's Office with doing. I think the public would be outraged if they thought we were so up ourselves that we were just looking at journalists and not looking at the wider societal problems of witness intimidation, jury-tampering, people getting in the way of the course of justice in family proceedings and all these other things which are the big issue which we have it in our power to deal with. I do not want to get drawn into a battle between two newspaper groups and nor, I suggest, should the Committee.

  Q1837  Philip Davies: Do you not think that the public might be outraged if you were aware of lots of things that were going wrong, but you were not doing anything about them because they were too time-consuming to deal with and you were looking at other things instead?

  Mr Graham: But, as I have said, that is not what I said. We were tackling it at source in dealing with the dealers in the information and at the top by dealing with legislation. We were let down. We were let down by the courts who did not seem to be interested in levying even the pathetic penalties they had at their disposal, we were rather let down by Parliament in the end because nothing came of the legislation and I think, frankly, we were let down by the newspaper groups who clearly did not take it as seriously as the ICO.

  Q1838  Mr Watson: I am hopefully going to try and get your ideas for what we could do as a Committee to satisfy ourselves that this will not happen again, and you have raised a very important point about what legislation can be enacted to make that happen. I would like to tease you a little bit on whether you think that self-regulation in this area is working and, in particular, the test that a journalist has to make about public interest, how that is assessed and whether there could be self-regulatory rules that make sure that they are not just at it.

  Mr Graham: I do not think it is the job of the Information Commissioner to offer a view on self-regulation of the press. I have already said that, coming from my previous job only a few weeks ago as Director General of the Advertising Standards Authority, I think effective self-regulation can be an extremely effective way of proceeding, but perhaps that is for another day. The idea of a public interest defence for the legitimacy of journalistic activity is absolutely fundamental and it is not just to do with the PCC, it is a defence under the Data Protection Act, and in my role I will, both under the Data Protection Act and the Freedom of Information Act, have to take many decisions, balancing sometimes competing interests in deciding where the public interest lies. I gave the example of the famous Guardian investigation into the Aitken family's stay in that French hotel and the subterfuge that was employed to extract the bill from the vaults in the hotel, a very exciting story, and anyone who has been involved in journalism, as I have, would say that that was a legitimate piece of activity, so sometimes you do slightly doubtful things in a good cause. I suppose the issue is whether the undoubtedly doubtful things are simply in the cause of fluff and tittle-tattle.

  Q1839  Mr Watson: Given that there is a public interest defence in the Data Protection Act, presumably what is in the public interest will be defined by case law?

  Mr Graham: There will be similar cases which will no doubt inform, but I think every case has to be looked at on its merits. Of course it is a truism, is it not, that the public interest is not necessarily what interests the public?



 
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