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Bulletins Story:
DAILY MAIL TOPS INFORMATION COMMISSIONER'S LIST OF NEWSPAPERS
THAT USE CONFIDENTIAL MATERIAL
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Date:
24 January 2007
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A report by the Information Commissioner (What Price
Privacy Now?) states that the Information
Commissioner’s investigation into the organised trade in
confidential information (Operation Motorman) has revealed
that 31 publications dealt with a firm of private investigators
based in Hampshire.
This report comes at the time when the former royal editor of
the News of the World, Clive Goodman, and
a private investigator, Glen Mulcaire, await sentence for plotting
to intercept the Prince of Wales’ voicemail messages.
The Report
The Daily Mail tops the Information
Commissioner’s list with 952 transactions positively identified and
although the list heavily features tabloid newspapers, certain
magazines and broadsheets are also identified. The other
publications listed are: Sunday People, Daily Mirror,
Mail on Sunday, News of the World, Sunday Mirror, Best Magazine,
Evening Standard, The Observer, Daily Sport, Sunday Times, The
People, Daily Express, Weekend Magazine (Daily Mail), Sunday
Express, The Sun, Closer Magazine, Sunday Sport, Night and Day
(Mail on Sunday), Sunday Business News, Daily Record, Saturday
(Express), Sunday Mirror Magazine, Real Magazine, Woman’s Own,
Daily Mirror Magazine, Mail in Ireland, Daily Star, Marie Claire,
Personal Magazine andSunday
World.
The Data Protection Act 1998 makes it an offence to obtain,
disclose or procure the disclosure of personal information
knowingly or recklessly, and offences are punishable by a fine up
to £5,000 in the Magistrates’ Court and on unlimited fine in the
Crown Court. Exceptions are permitted where the obtaining,
disclosing or procuring of the information is in the public
interest. However, very little of the content of a number of these
tabloids and magazines could be considered to be in the public
interest in the legal sense, and it is difficult therefore to
believe that this defence would often be available to these
tabloids and magazines.
The Initial Report
The Information Commissioner’s initial report (What
Price Privacy?), published in May 2006, sought to
tackle the illegal trade over the last 6 months by raising
awareness of the problem, recommending the increase in the penalty
for offences to a term of imprisonment not exceeding 2 years, and
by calling for key players and influential bodies to take steps to
reduce demand. The Information Commissioner’s objectives are
progressing, although some with greater speed and force than
others.
Over the past 6 months 32 national press articles have featured
the report and highlighted the widespread illegal trade in personal
information. Trade and regional press coverage has also been
extremely encouraging with 54 trade and 43 regional articles
mentioning the report. It has also been covered by the broadcast
media including Five Live, the Today programme, BBC Breakfast, the
lunchtime and evening news and BBC regional stations.
On 24 July 2006 the Department for Constitutional Affairs
launched the Government’s consultation “Increasing penalties
for deliberate and wilful misuse of personal data” and its
findings acknowledge that the current penalties are not
sufficiently strong to deter the illegal trade.
The Reaction of the Press Complaints
Commission
The Information Commissioner said in What Price
Privacy Now? that the Press Complaints Commission
(PCC) has confirmed that journalists must act within the law,
having regard to the Data Protection Act and to the proper use of
the public interest exemption if they wish to rely on this. The
Information Commissioner has engaged directly with the Chairman and
Secretary of the Code of Practice Committee of Editors on the
subject of amending their Code. The Code is drafted by editors
themselves, binds all national and regional newspapers and
magazines and regulates the way in which news is gathered and
reported. The Information Commissioner suggested making it clear
that it is unacceptable, without an individual’s consent, to obtain
information about their private life by bribery, impersonation,
subterfuge or payment for information clearly obtained by such
means. Unfortunately, no concrete proposals have been brought
forward yet.
The Commissioner also raised the possibility of the PCC
producing further guidelines for journalists with the assistance of
his office. The Code of Practice Committee of Editors has indicated
its support for the production of clear guidance for the attention
of senior management in the industry. The guidance would be
included in the Editor’s codebook which supplements the Code and
would be posted on the Editor’s Code website. The Committee has not
agreed to amend the Code as suggested by the Information
Commissioner. However, the Committee has indicated that it will
keep the Code under review and that the Information Commissioner
can put forward a suggestion for a change to the Code through the
usual channels. The Commissioner has written to the Code of
Practice Committee to reiterate his suggested change to the
Code.
In summarising the progress made after 6 months the Information
Commissioner stated that “overwhelmingly the responses indicate
support for the proposals and many organisations have taken steps
of their own to raise awareness and tighten security as well as
more generally condemning the illegal trade. The majority of the
responses and steps taken are to be commended and clearly
demonstrate an understanding and commitment to deal with this
problem. A few responses have been less encouraging. Here my office
will continue to raise awareness and develop support for our
proposals.”
Press Reaction to the Report
Perhaps unsurprisingly, Associated Newspapers which publishes
the Daily Mail, the Mail on
Sunday and The Evening
Standard, said that the report “was utterly
meaningless” as it was based on the activities of just one
supplier. “Associated Newspapers, in common with all newspapers
and broadcasters – and many other organisations, including lawyers
– use search agencies to obtain information entirely legitimately
from a range of sources. In addition, the law specifically makes
provision for journalists making enquiries in the public interest.
Since the Information Commissioner first raised his concerns
Associated Newspapers has repeatedly stressed to all its
journalists that they must observe the law when seeking
information.”
There are a number of remarkable aspects of the
Daily Mail’s comment. The first is that
to observe that the Information Commissioner’s report was
meaningless because it was based on the activities of only one
supplier carries with it the clear implication that there are a
number of other suppliers (presumably for Associated Newspapers as
well as the remainder of the press) that supply such information.
If Associated Newspapers does have additional sources of
confidential information this is hardly reassuring.
Conspicuously absent from their comment was any denial that the
legal stipulations concerning the use of confidential information
had been complied with by Associated Newspapers. Despite Paul Dacre
being one of the PCC Commissioners, Associated Newspapers does not
have a good record of respecting the legal protection provided for
confidential and private information, as the recent judgment of the
Court of Appeal in the case brought against it by the Prince of
Wales indicates.
Finally, it is striking that there are no broadcasters who have
fallen foul of the Information Commissioner’s report. This is
doubtless because unlike the virtually non-existent regulation of
the print press by the PCC, Ofcom does exercise a degree of
restraint over the broadcast industry. Surely it is now time for
the anomaly that permits the print press such licence to be
removed.
Rosie McKimmie and
Jonathan Coad
Defamation & Privacy
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