APPENDICES
¶4.61 Mr Thomas described s55 of the DPA 1998 as "an entirely self-contained part of the Act".384
He also regarded a s55 offence as one of the utmost severity, noting that "a section 55 offence is often as least as serious as phone hacking and may be even more serious".385
¶4.62 In discussing the scope of the s55 offence, Mr Thomas expressed the view that "obtain"
meant more than just receive. He said that it meant to seek out and obtain, but stated that the issue as to whether "obtain" could include the use of an agent or third party had not been considered by the ICO.386 Mr Thomas was asked whether a journalist who asked a private investigator to obtain personal data, and subsequently received it through the agency of the private investigator would commit an offence under s55. Mr Thomas would not commit to a view as to whether this would fall within s55387 although he noted that there is a greater challenge in bringing a successful prosecution under s55(1)(b), which relates to procuring the disclosure of information, than under s55(1)(a).
¶4.63 Commenting on the scope of s55 and whether position of a journalist could fall within ss55(1)
(a) and (b), Mr Aldhouse, former Deputy Information Commissioner, stated that he was inclined to the view that the fact that you use an intermediary to obtain the information doesn't mean that you have not yourself obtained it and therefore the action of a journalist could either be "obtaining" within subsection (a) or "procuring" within subsection (b), and probably falls within both subsections.388 http://www.pearson.com/media/files/annual-reports/Pearson_AR10.pdf p100, lines 24-25, Tom Crone, ibid p5, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Supplemental-Submission-by-Transmedia- Watch1.pdf pp19-20, para 3.2.2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Report-by-Elizabeth-Filkin. pdf pp47-48, lines 21-7, Jonathan Stephens, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/ Transcript-of-Afternoon-Hearing-25-May-2012.pdf pp38, 39, lines15-25, 1-4, Francis Aldhouse, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/ Transcript-of-Morning-Hearing-5-December-2011.pdf
¶Public interest defence in s55(2) 4.64 There is an express public interest defence set out in s55(2), namely that an offence will not
be committed where in the particular circumstances the obtaining, disclosing or procuring was justified as being in the public interest.389 The defence set out in s55(2)(d) was described by Mr Thomas as an objective test.390 He noted that "public interest" is not defined in the DPA and whilst the Information Commissioner has drafted some guidance on the meaning of public interest during his tenure this was never published.391 The concept of public interest is one that is familiar to the courts and is regularly considered in the context of claims for misuse of private information and defamation.
¶4.65 The meaning of public interest was explored with Mr Thomas in his evidence. He agreed that
1917it would be very difficult to justify conduct in public interest terms if someone was merely fishing for information without having identified in his or her mind what the public interest might be before starting the exercise.392 He thought it would be difficult for someone to say that finding out the name, telephone number or the address of someone so they could talk to them (in the context of checking a story) would be a matter of public interest. He expressed the view that it would be difficult to justify the vast majority of celebrity tittle-tattle in public
¶Appendix 4 | Legal Materials
interest terms.393 Mr Graham noted that the broad scope given to the public interest in journalism in Campbell v Mirror Group Newspapers suggested that a successful prosecution of a journalist would be unlikely.394 He said it was arguable that a journalist would have a public interest defence in circumstances where he was trying to obtain an ex directory telephone number from search group to contact the subject of a story. Mr Graham emphasised in his evidence that making a judgment on where the balance of the public interest lies on the facts of each case is something that the Information Commissioner is called upon to do under both the DPA and FOIA.395
¶4.66 Subsections 55 (4)-(8) make it an offence to sell or offer to sell personal data which has been
or is subsequently obtained or procured knowingly or recklessly without the consent of the data controller.
¶Penalty for breach of s55(1) 4.67 Offences are punished by a fine of up to £5,000 in the Magistrates' Court and an unlimited
fine in the Crown Court. However, since the Act came into force the penalties imposed by courts for the commission of data protection offences have been relatively light. Between November 2002 and January 2006, only two out of 22 cases resulted in fines amounting to more than £5,000.396
¶4.68 The Information Commissioner's report to Parliament "What Price Privacy? The unlawful
trade in confidential personal information", published on 13 May 2006, and the follow up report "What Price Privacy Now?", published on 13 December 2006, recommended that the Lord Chancellor bring forward proposals to increase the penalty for persons convicted under s55 to a maximum of two years' imprisonment, a fine, or both on indictment; and on summary conviction to a maximum of six months' imprisonment, a fine, or both. The purpose of this recommendation was to discourage the undercover market in personal information, and to send a clear signal that unlawfully obtaining personal information would constitute a crime.397
¶4.69 The report "What Price Privacy Now?" set out in tabular form the publications which had
been identified from documentation seized during Operation Motorman as being involved in the unlawful obtaining or procuring of personal data.398 The report noted at paragraph 5.8 that documents seized as part of Operation Motorman showed thousands of s55 offences and gave details of a number of identifiable reporters who had been supplied with information obtained unlawfully; implicating some 305 journalists.
¶4.70 A summary of the penalties imposed following convictions for data protection offences is
1918set out in Annex A of the report "What Price Privacy?" The table demonstrates that of the prosecutions pursued between 2002 and 2006 by the Information Commission,23 p13, lines 12-22, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/leveson-inquiry- transcript-060911.pdf pp4-5, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Witness-Statement-of-Professor-Susan- Mendus.pdf p12-13, ibid p1, para 1.1, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Thomas- Mockridge.pdf pp103-104, lines 24-3, Lord Patten, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of- Morning-Hearing-23-January-2012.pdf pp8-9, paras 20-23, ibid ibid, pp63-65 p206, para 272, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Stephen- Abell.pdf No records of these approaches were kept before May 2010 p41, lines 4-7, Alexander Owens, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-of- Afternoon-Hearing-30-November-2011.pdf p17, para 22, ibid http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-Ian-Hurst.pdf pp57-58, lines 18-5, William Lewis, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of- Afternoon-Hearing-10-January-2012.pdf Ms Marshall claims that this was replicating Mr Paxman's interview of a well-known politician in the 1970s pp89-90, lines 24-12, Daniel Sanderson, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript- of-Morning-Hearing-15-December-20111.pdf p37, lines 3-16, Gerry McCann, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-of- Afternoon-Hearing-23-November-2011.pdf p16, para 29d ibid pp84-85, lines 8-20, Peter Wright, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript- of-Morning-Hearing-11-January-2012.pdf; p11, para 35, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/02/Witness-Statement-of-Paul-Dacre.pdf; p6, para 17, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/01/Witness-Statement-of-Dawn-Neesom.pdf; pp1-2, paras 5 – 6, http://www.levesoninquiry.org.uk/wp- content/uploads/2012/01/Witness-Statement-of-James-Welsh.pdf; p4, para 13, http://www.levesoninquiry.org.uk/ wp-content/uploads/2012/01/Witness-Statement-of-Peter-Wright.pdf pp102-103, lines 15-3, Elizabeth Filkin, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript- of-Morning-Hearing-5-March-2012.pdf p7, para 18, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Lord-Blair.pdf p70, lines 1-12, Paul Peachey, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-of- Morning-Hearing-14-March-2012.pdf para 4.2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Report-by-Elizabeth-Filkin.pdf pp23-24, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of-Morning- Hearing-9-December-2011.pdf p4, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Second-Witness-Statement-of-Richard- Thomas-CBE1.pdf; p1, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Third-Witness-Statement-of- Richard-Thomas-CBE1.pdf http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Philip-Coppel-QC-redacted.pdf p29, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Exhibit-1.pdf p99, lines 14-18, Lord Mandelson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of- Morning-Hearing-21-May-2012.pdf p9, lines 3-6, Tony Blair, ibid p74, para 221, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement-of-David- Cameron-MP.pdf ibid p32, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-VC1-1-to-Witness-Statement-of-Vince- Cable-MP.pdf p56, lines 13-16, Alex Salmond, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-of- Afternoon-Hearing-13-June-2012.pdf Part K, Chapter 7 pp7-8, para 32, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Claire-Enders- Enders-Analysis.pdf The majority of the press core participants have argued in favour of a public interest defence for journalists, see for example News International closing submissions at para 64, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/07/Closing-Submission-from-News-International.pdf, Associated Newspapers closing submissions at para 31 http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Closing-Submission-from-Associated- J Newspapers-Ltd.pdf, Guardian News closing submissions at para 17 http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/07/Closing-Submission-from-Guardian-News-and-Media-Ltd.pdf. See also part 5, http://www. levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Media-Standards-Trust.pdf; Part 6, http://www. levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Professor-Roy-Greenslade-of-City-University.pdf which support a general public interest defence for journalists Appendix 4 p40, lines 3-6, Baroness Buscombe, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-of- Morning-Hearing-7-February-2012.pdf p3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Covering-Letter-from-Ofcom.pdf; p10, para 23, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Lord-Black-of-Brentwood1.pdf; p8, para 4, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Submission-by-Carnegie-Trust.pdf; p20, para 3.35, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Submission-by-MediaWise1.pdf; p11, http:// www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Michelle-Stanistreet-on-behalf-of-the- National-Union-of-Journalists.pdf; p13, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission- by-Coordinating-Committee-for-Media-Reform.pdf pp106-107, Lord Black, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Transcript-of-Morning- Hearing-9-July-2012.pdf p60, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Media-Standards-Trust.pdf Part H K Defamation Act Schedule 2.10, ibid p70, lines 1-3, James Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-of- K Afternoon-Hearing-24-April-2012.pdf Part K, Chapter 7, para 3.14 Discussed in detail in Section 3 of this Annex of 26 resulted in convictions. It was noted that prosecutions brought under the Act have generally resulted in low penalties: either minimal fines or conditional discharges. Between November