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Bulletins Story:
ROYAL EDITOR OF THE NEWS OF THE WORLD ADMITS PHONE
TAPPING
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Date:
30 November 2006
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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.
Jonathan Coad
Defamation & Privacy
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