An Inquiry into the Culture, Practices and Ethics of the Press
What Price Privacy? The political campaign
What Price Privacy? The political campaign
¶4.1 Any new statutory regime can take time to bed down in practice and a regulator created by
statute will be in the best position to report on its practical operation. In relation to the DPA, the ICO had two channels for doing so. The first was to do so informally to the sponsoring government department with policy responsibility,92 the second was to do so formally by reporting directly to Parliament either generally on the exercise of its functions under the Act or on specific aspects of those functions.93 It was this second channel which had been used in the case of the What Price Privacy? Reports.
¶4.2 Reporting on effectiveness of legislation is not the same as campaigning to change it. The
duties of the ICO under the DPA focus on performance of statutory functions94 and do not themselves very obviously provide the platform from which to mount such a campaign. Clearly, the general desirability of a statutory regulator undertaking such a role is a matter of
¶H judgment on which I do not express an opinion but a number of issues do fall to be considered.
¶4.3 The first is the risk that a political campaign might impact on the principal function of a
1021regulator such as the ICO, that is to say, the discharge of regulatory obligations which must be undertaken independently, impartially, fairly and objectively, and many of them in a quasi- judicial fashion. As a matter of law, therefore, any campaign should raise no issue, whether as a matter of fact or of perception, which could cast any doubt on the proper conduct of those functions. In that regard, it is relevant that the ICO exercises regulatory functions in relation to the Government itself both as users of personal information and therefore subject to the ordinary data protection regime but also of course as the single largest collective subject of the freedom of information regime. The Information Commissioner would obviously have to be circumspect in relation to any campaign for change in data protection law and, when
¶Chapter 2 | Operation Motorman
personally identifying himself with it, have regard to its effects on the reputation of the office and the enhancement of its role and functions.
¶4.4 The second issue relates to the choice of the topic on which to campaign. S55 creates a
criminal offence with statutory defences and a maximum sentence on conviction of a fine.95 Yet Mr Thomas had said that the ICO was not principally a prosecuting authority. In most regulatory regimes, criminal provisions usually constitute a measure of last resort, dealing with situations either of egregious breach for which no other response is appropriate, or for persistent and escalating breach where other, stepped, interventions have been tried without success. Criminal prosecution is complex and expensive. The deterrent effect of differential maximum sentences is not straightforward (and, as discussed below, of potential relevance at all only if there is a realistic prospect of apprehension and conviction).
¶4.5 The importance of s55 to the data protection regime did not therefore lie in its centrality to
the operation of the regime, any functional dependence on it of other powers, the regularity with which it was likely to be deployed or its operational visibility to the senior leadership of the office. Nor, of course, is s55 a provision of inherent particular relevance to the press: it is a provision of complete generality, the offence able to be committed by 'any person', whether or not they are formally subject themselves to regulation by any of the other provisions of the data protection regime.
¶4.6 In his first witness statement, Mr Thomas suggested that s55 was likely to be the most relevant
provision of the Act to the Inquiry's terms of reference.96 Doubtless, he did so because of the prominence that he had given the issue in his strategic response to the Motorman evidence and the role of the press. It was on 15 April 2005, with the conviction and conditional discharge of Mr Whittamore for s55 offences arising out of Motorman, that Mr Thomas records, "When I heard this, I can recall personally and strongly sharing my team's feelings of frustration."97 He understood Counsel to have advised as a result that further prosecutions would not be in the public interest. "It was then my personal decision to commission a report to be presented to Parliament…"
¶4.7 It will be necessary to consider the sentencing remarks of the judge and the reasons for the
sentencing decision but they are, obviously, fact-specific, not least in relation to the personal circumstances of Mr Whittamore and his inability to meet the obligations of a financial penalty. The disappointment in the office at the Whittamore result is understandable, but H consideration must also be given to the extent to which the disappointment was, in any event, the direct result of the choices that had been made within the ICO about the extent of its own engagement with the criminal process, and about pursuing alternative or additional operational options more generally.
¶4.8 The outcome of the prosecution may have been a blow to the ICO principally because, in the
1022first place, it had represented the majority of its investment in an operational response to the Motorman material. It is beyond question, however, that there was an entirely justifiable and genuine sense that it would have been a travesty for matters to have been left there, given the sheer extent of the evidence uncovered. It is not entirely clear why the approach adopted was seen as the principal way forward.
¶PART H | The Press and Data Protection
¶4.9 What Price Privacy? The unlawful trade in confidential information98 was the report to
Parliament on the Motorman affair and its implications by the ICO issued pursuant to its powers under s52(2) of the Act.99 The foreword provided by Mr Thomas introduced the report as being essentially about the evidence of a "pervasive and widespread 'industry' devoted to the illegal buying and selling" of information contrary to s55, and about the need for change to the law. He put it this way:100
"The crime at present carries no custodial sentence. When cases involving the unlawful procurement or sale of confidential personal information come before the courts, convictions often bring no more than a derisory fine or a conditional discharge. Low penalties devalue the data protection offence in the public mind and mask the true seriousness of the crime, even within the judicial system. They likewise do little to deter those who seek to buy or supply confidential information that should rightly remain private. The remedy I am proposing is to introduce a custodial sentence of up to two years for persons convicted on indictment, and up to six months for summary convictions. The aim is not to send more people to prison but to discourage all who might be tempted to engage in this unlawful trade."
Operation Motorman is cited as one of the major cases providing evidence for this trade, but a range of other cases are cited also.
¶4.10 What is striking about this analysis, and indeed about What Price Privacy? more generally,
is the absence of any context within which s55 sits in the wider data protection regime. Even ignoring the unexamined assumption that different sentence maxima would have a definitive impact on the problem, no attention is given to the obvious question of what other operational means were available to the ICO to address the problem it had diagnosed. On the contrary, the entire thrust of the report is directed to legislative change on criminal penalties. As the foreword concludes:101
"These concerns, and the need for increased penalties, have been raised with the Department for Constitutional Affairs. The positive response that I have received so far is encouraging. These are early and welcome indications of progress on the possibility of Government action."
¶H What Price Privacy? set out the problem. Government action (and of course action by the
PCC) was expressed to be the answer to the problem. To focus continued attention on the issue, the ICO was to publish a follow up report after six months to monitor progress on the answer.
¶4.11 Putting to one side the important argument that breach of the criminal law should not simply
1023be seen as a cost of doing business, the most important deterrent the criminal justice system can provide is the likelihood of being caught. In the analysis of the perspective provided by the criminal law,102 the first problem in relation to data protection is that those whose personal information is being illegally traded are unlikely to know about it with the result that no complaint will ever be made. Thus, the critical aspect of Operation Motorman was the unexpected discovery of the 'treasure trove' (as was equally the case in relation to Operation
¶Chapter 2 | Operation Motorman
Caryatid).103 This is particularly so in relation to cases involving the press because of the complications that will flow from the legal protection afforded to journalistic materials and to sources. In truth, without victim complaints, the only systemic way of identifying criminality of this sort is by the exercise of regulatory investigative powers. If there is a measure of confidence that crime will not be detected, the possibility of a custodial sentence may not be sufficient to discourage the behaviour: it was not sufficient, for example, to prevent the phone hacking exposed by Operation Caryatid.
¶4.12 Mr Thomas explained the objective behind his focus on increasing the maximum available sentence for s55 in this way:104
"I think I had quite a long list of objectives by the end of the day, by the time we got to publishing this report. The first objective was to tell the world what was going on. The primary stated objective was to get the recommendations taken seriously, particularly to get the government to increase the penalty, because we felt the penalty was the main problem. But I also felt – and I'm not sure this was articulated, but in my own mind – the more noise we could make about this, even if not successful in getting the law changed, the more that was likely to have a beneficial result. I wanted to get people on the back foot."
Although the significance of a maximum which was financial (so that any penalty would have to be linked to means to pay) is important, it is difficult to see it as the 'main problem' facing a regulator armed with other means of enforcing the law and driving up standards. It had, however, attained a more symbolic quality.
¶4.13 It is possible to sympathise with the description of the problem in the introduction to What
Price Privacy? that low penalties devalued the data protection offence in the public mind and masked the true seriousness of the crime, but it is possible to argue about the degree to which the sentence maxima stood proxy for the regime as a whole. In the perennial struggle to get data protection (and, thus, the ICO) taken seriously, whether by regulated business, by the public, by the courts, by politicians, or by the press, the ICO quite understandably needed to make a public example of the Motorman find. The outcome of the Whittamore prosecution could be thought to reveal that the wider objective had been set back and that failure was in turn symptomatic of the lack of seriousness with which the courts seemed to consider data protection. The sentence maxima contributed to that lack of seriousness, and were in turn a H sign of a lack of legislative seriousness: a failure at the political level to take data protection seriously. The s55 campaign was to that extent a test of political commitment, and as such existential for the ICO. The Motorman evidence, and the other evidence referred to in What Price Privacy?, gave the ICO an impressive platform from which to make its case for data protection.
¶4.14 Mr Thomas put it this way:105
1024"The ICO put heavy effort into promoting the two reports. The main aim was to secure implementation of our recommendations – especially custodial sentences which were primarily seen in terms of deterrence – but also to raise awareness about the nature
¶PART H | The Press and Data Protection
and scale of the illegal trade and get it taken much more seriously. The technique of announcing the intention to produce a second (progress) report was deliberately part of this strategy. I was personally involved in this promotional activity to a very considerable extent. The Commissioner - as the personification and leader of the ICO - is obviously expected to be a visible part of all major activity. In this case, I attached particular priority to the issue and also viewed promoting the reports as a tangible way of fulfilling a wider ambition to get data protection taken more seriously."
¶4.15 Operation Motorman triggered the political campaign on s55 although that campaign was
neither a specific response to the evidence uncovered by Motorman, nor was it addressed specifically to the culture, practices and ethics of the press. At its heart, although it was much more general and, in the mind of Mr Thomas, symbolic of the struggle to get data protection taken seriously by a wider political audience, it very quickly acquired totemic resonances of a very different kind in the political arena into which What Price Privacy? had ventured.
¶4.16 It is important to appreciate that the ICO campaign on s55 was not targeted specifically at
journalists although the campaign against it was championed by the press.106 The publication of What Price Privacy? marked the emergence into the public arena of what had until then been low-key policy discussions with the Department for Constitutional Affairs about law reform. It also coincided with a point in the protracted and frustrating dialogue between Mr Thomas and the PCC at which the latter had formed a view that there was little it was able or willing to contribute to the nominally jointly-espoused aim of effecting culture change in the press, without direct regulatory engagement by the ICO with the industry.
¶4.17 The arrival of What Price Privacy? proclaimed the introduction of custodial penalties as 'the
solution' to the problem the ICO had been describing to the PCC. This could reasonably have been expected to have been interpreted by the industry as 'the solution' directed to the culture, practices and ethics of the press in relation to the acquisition and use of personal information. It was a solution the press entirely rejected for itself. Two results predictably followed. The first was the mobilisation of a political lobbying effort by the press against the campaign, directed to the heart of government. The second was a hardening of the attitude of the press (now unmistakably represented by the PCC) towards the ICO.
¶H 4.18 As Mr Thomas described, his political campaign was both elaborate and extensive; on any basis,
1025it was a major undertaking and a substantial investment of his personal time and attention. In the end it involved him engaging at the highest levels in Government and extensively in Parliament, including by giving evidence to no fewer than four Select Committees.107 By December 2006 (the time of the promised follow-up report What Price Privacy Now? The first six months progress in halting the unlawful trade in confidential personal information),108 the campaign had, at least in its own terms, achieved a measure of success. On 24 July 2006, the DCA had published its public consultation paper on increasing the sentencing maxima for s55 to include custodial penalties.109 There had been a degree of public attention and media coverage (What Price Privacy Now? had included four pages of headline press cuttings) and
¶Chapter 2 | Operation Motorman
the report claimed an encouraging response from the investigations industry, and raised awareness among (at any rate intermediary) media organisations.
¶4.19 The follow-up report expressed disappointment with the opposition from within the press
(both by editors and proprietors) to the s55 campaign and considered it misconceived in underestimating the existing protections in the law and the commitment of the ICO itself to freedom of expression. Its conclusion was that:110
"There is still further work to be done to reduce the demand for illegally obtained confidential information. This work will be ongoing. We will continue to track down and prosecute offenders. We will continue to press the Government to introduce the option of a prison sentence and see this progress report as supporting that goal. We will continue to raise awareness and we will encourage and work with any organisation that wants to raise standards or produce clear guidance on data protection obligations. In particular we will be working closely with the media on the development of relevant guidance and standards for journalists."
- What Price Privacy? The reaction of the PCC and the editors 5.1 At this point it is appropriate to return to the dialogue between Mr Thomas and the PCC
whose 'formal response' had been to direct the ICO to the Editors' Code Committee while noting that the issue had become 'complicated' by the publication of the DCA consultation on s55.
¶5.2 On 21 September 2006, Mr Thomas met Ian Beales, Secretary of the Editors' Code of Practice
Committee. Mr Thomas described the meeting in his internal note as 'interesting and intelligent'.111 HL Hansard, 09 October 1990, Volume 522, Column 169, http://hansard.millbanksystems.com/lords/1990/oct/09/ broadcasting-bill p83, lines 17-21, Carla Buzasi, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-of- Morning-Hearing-8-February-2012.pdf p587, lines 14-23, Baroness Buscombe, ibid pp45-46, lines 24-23, ibid p2, para 14, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Witness-statement-of-Anna-van- Heeswijk.pdf http://www.atkinsthomson.com/07.06.2011%20-%20Sienna%20Miller%20Statement%20in%20Open%20Court.pdf in order to protect the privacy of the Bowles family to such extent as is possible, and notwithstanding the fact that the information is, at least to a large extent, in the public domain and available, this Report will not publish references to their names, the precise articles or photographs or other family details p70-71, Piers Morgan http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of-Afternoon- Hearing-20-December-2011.pdf; p19, para 40, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Chief- Constable-Matthew-Baggott.pdf p8, para 42, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Sean-ONeill. pdf p1, para 1, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/RJT-Exhibit-18.pdf pp1-6, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Exhibit-GB6-to-Witness-Statement-of- Gordon-Brown-MP-Black.pdf p3, lines 17-23, Rupert Murdoch, ibid p65, lines 11-15, Sir John Major, ibid p8, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Exhibit-KRM-18.pdf ibid p9, paras 54-55, ibid K p34, lines 16-21, Lord Black, ibid p38, para 119, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Lord-Hunt-of- K Wirral.pdf This includes organisations such as the Chinese Federation of Labour, the China Youth League or the All-China Women's Federation [2004] 2 AC 457 In addition to the established themes of louder condemnation of unacceptable practices and suitable amendments to the Code, Mr Thomas was explicitly now also looking for 'better awareness of s55' from the industry. S55 was evidently the dominant theme in the event, Mr Thomas with a degree of understatement indicating that "support for the prison sentence would be welcome, but I did not expect that" and Mr Beales dismissive of the DCA paper and stressing the 'chilling effect' of the proposal. Mr Thomas had proffered some proposed Code changes of his own but came away from the meeting largely empty handed. H
¶5.3 On Mr Thomas's account, Mr Beales's position was simple: "his main difficulty is that there is
not much incentive to improve the Code unless the threat of increased penalties disappears at the same time". If accurately represented, this is a somewhat remarkable position to adopt: the offence contained within s55 was the law and contained within it a defence for journalists acting in the public interest. A Code of Conduct should surely provide the very best guidance it can and it is difficult to see why there needs to be an incentive to improve it.
¶5.4 In any event, the press had fully subsumed the dialogue between the ICO and the PCC into
1026its own political campaign in opposition to reform of s55 and it may be legitimate to infer the extent to which Mr Thomas had accepted that reconstitution of the agenda: his note suggests that the talk of producing joint guidance was now explicitly in terms of 'better section 55 guidance' rather than anything more generally addressed to the culture, practices and ethics of the press in the handling of personal information.
¶PART H | The Press and Data Protection
¶5.5 On 27 October 2006, there was a follow-up meeting (at NI's Wapping premises): the
Committee Chairman Les Hinton, and Stephen Abell from the PCC also attended. The note of that meeting suggests that Mr Hinton made plain from the outset that the Code Committee had no mandate to take a position at that point but was considering its response to What Price Privacy?.112 The conversation appears to have amounted to a further turn around the familiar course but with Mr Thomas now leading on s55. Dealing with the 'illegal trade' needed tougher sentences, but these were not targeted at journalists (who in any event had the protection of special exemptions), he was seeking co-operation with guidance and code revisions as a means of addressing journalism's contribution to the demand side of that illegal trade. Mr Thomas had evidently responded to the industry's elision of the PCC dialogue and the s55 campaign, not by attempting to return the dialogue to its original broader purpose but by accepting the redrawn terms of reference and trying to argue his side of that debate.
¶5.6 Mr Hinton's response, however, is illuminative of the distance this dialogue had shifted from
the original sceptical but pragmatic tone of the PCC in the opening stages of the encounter. Not only did he deploy the familiar challenge back to the ICO on the question of regulatory inaction, and the clear statement of objection to the s55 campaign, cast in the language of the chilling effect on journalism, but he moved the counter-attack on to the territory of the principles of press self-regulation. Mr Thomas records the Committee representatives as having:113
"expressed the view that a prison sentence would undermine the effective operation of the PCC as legal advice is likely to result in journalists not cooperating with PCC investigations in case they incriminate themselves. In addition explicit inclusion of offences in the code would need to be investigated by the prosecuting authority not the PCC effectively taking that provision outside of and therefore undermining the self regulatory model."
This ignores the fact that the criminal offence existed and was hardly the constructive dialogue of fellow regulators; this was taking the political battle on to definitive territory with an open challenge to the ICO to retreat from PCC (that is to say industry) territory.
¶5.7 In a contemporaneous handwritten note by Mr Thomas,114 the words 'last chance saloon'
¶appear. At one stage earlier in the dialogue, Mr Thomas appears to have deployed an H intimation that the credibility of the PCC as a 'self-regulator' was at stake in response to
the action he sought from them in the aftermath of Motorman. If he was seeking to deploy it again in the highly-charged context of the s55 debate that was undoubtedly a high-risk political strategy, and Mr Hinton's response would be to a degree less startling. Needless to say, Mr Thomas emerged from that meeting empty handed again. Mr Hinton's follow- up letter of 17 November was more positive in tone, but non-committal as regards further industry action.115
¶5.8 It was now fully three years since Mr Thomas had moved to open a dialogue with the PCC,
1027during which period he had identified himself very personally with the conduct of that relationship. The return on that significant personal investment was not evident. But even now, at a point which might be described as open antagonism, there was no evidence that he sought to reappraise his approach. It is possible that one effect of the elision of the PCC and s55 strands of his strategy had been to reframe the former not as a practical end in itself but,
¶Chapter 2 | Operation Motorman
by keeping open a channel of communication, as a means of furthering (or at least seeking to manage opposition to) the latter. At any rate, Mr Thomas persisted in it.
¶5.9 What Price Privacy Now? provided some public comment on the interaction between the
ICO and the PCC, thereby to some extent setting the agenda for its future interaction. It also records an understanding that the PCC 'monitors and adjudicates on disputes about breaches of the Editors' Code of Practice, which sets out the conduct the press have agreed to follow as part of a self regulatory system'.116 The progress recorded was, however, relatively modest and is in these terms: (a) The PCC had confirmed publicly and in writing that journalists must act within the law. (b) It had agreed to keep repeating that message – and the ICO "hopes that this will be done as loudly and actively as possible". (c) There had been discussion about Code amendment relating to the acquisition of personal information – "unfortunately, however, no concrete proposals have so far been brought forward". (d) The Code Committee had rejected the ICO's own suggested amendments, but had agreed to keep the matter under review. (e) There was agreement in principle to the issue of "guidance for journalists" by the PCC with ICO assistance.
¶5.10 On 4 January 2007, there was a further meeting with Murdoch MacLennan (then Chief
Executive Officer of Telegraph Media Group) and Guy Black, both by this stage leading actors in the s55 counter-campaign. On Mr Thomas' account,117 the agreed action points were that the ICO should prepare guidance on s55 and the public interest defence with a view to helping journalists to navigate it. It is notable, first, that the focus appears to have swung fully around from the industry representatives being asked to take action to change the culture, practices and ethics of the press, to the regulator being asked to clarify the law and his approach to regulation. Secondly, this appears, in itself, to have become part of what was, by now, a three- way negotiation on s55 between the press, the government and Mr Thomas.
¶5.11 The course of that negotiation is set out more fully in that part of the Report that deals
1028with the relationship between the press and politicians.118 It culminated in a compromise arrangement whereby a custodial penalty for s55 was finally introduced by the Criminal Justice and Immigration Act 2008,119 together with an enhanced, more subjective defence for H journalists, but neither provision was commenced as operative law; commencement relies on the exercise of an Order-making power which has not to date been exercised. At the same time, further desultory exchanges were continuing between Mr Thomas and the PCC. By letter of 27 March 2007, the Code Committee eventually rejected the amendments to the Code that he had proposed, but suggested some alternatives.120 The ICO responded on 16 April, accepting the changes on the basis of a "hope that they will be introduced with maximum publicity and advice to the media. Otherwise, the 'burial' of the changes within the existing Code, and the absence of a section explicitly prohibiting the obtaining of any private information without consent or a public interest justification, may present the risk that unacceptable activity will continue."
¶PART H | The Press and Data Protection
There is no indication that the ICO saw itself as playing a direct role in publicity and advice to the media. The letter reaffirmed the ICO's commitment to the s55 campaign and to producing guidance on s55 for journalists.121
¶5.12 On 25 April 2007, there was a further meeting with Guy Black and colleagues from press
representative bodies to discuss 'stakeholder engagement' and the preparation of the guidance. It seems to have been inconclusive. The press representatives saw their role in relation to the guidance as 'supporting and commenting and they do not envisage a jointly badged product'; the ICO undertook to shorten and simplify the latest draft of the s.55 guidance.122 A new version was worked on over the late spring and summer of 2007. Work also began within the ICO on a draft statement of prosecution policy on s55, designed to provide a measure of reassurance to the press as the ICO continued its campaign for custodial penalties over the first half of 2008.
¶5.13 An insight into the extent to which Mr Thomas had become very personally engaged in the
politics of the passage of the relevant provisions of the Criminal Justice and Immigration Bill can be gained from some of the contemporary documentation which he provided to the Inquiry. In February 2008, the ICO prepared a draft report to Parliament in response to its apprehension that the amendment would be withdrawn by the Government in the face of press-sponsored opposition123 as well as briefing for Ministers and recommendations for Parliamentary handling.124 It also shows Mr Thomas directly lobbying the Government against withdrawal of the amendment in terms which included:
(a) urging that 'withdrawal would damage the reinvigorated credibility and authority of data protection law and the Information Commissioner's Office'; (b) an intimation that withdrawal would 'sit strangely' with the Government's legislation on identity cards; (c) the anticipation of support in a number of outstanding Select Committee Reports; (d) ripostes to the press campaigning; (e) averring a determination on his own part to stop the pernicious, largely hidden and illegal market in personal data; and (f) a conclusion, 'with considerable reluctance' that he would respond to withdrawal by
¶H laying a further specific report before Parliament.125
In due course, Mr Thomas met the Prime Minister, preparing for an agreed role in the continuing political negotiations between the Government and the press. He said that 'the PM started by saying that I had the most difficult job in the country'.126
¶5.14 It is noteworthy that Mr Thomas was placing no (other) operational action by the ICO into
1029this political arena. There was no proffered action plan for the means by which the ICO would structure its priorities and operations so as to ensure that the legislative change would, indeed, stop the trafficking of confidential personal information. The assumption appeared to remain that the change in its own right, and the accompanying publicity for the role of the ICO in promoting that change, would be effective in themselves. An internal note of a
¶Chapter 2 | Operation Motorman
meeting that Mr Thomas had with senior officials from the Ministry of Justice (the successor department to the DCA) is illustrative of the way he was thinking.127 As well as offering an assessment of the party politics of the Bill's provisions, he described his likely public reaction to a then-current possibility to change its provisions significantly in favour of the press. It would, he said, be "nuclear":
"I said it would be very noisy and very messy. We will publicly denounce any such attempt. If we lost, we would publish a third report to Parliament, documenting how this state of affairs had come about."
¶5.15 Suggestions that the press might finally take steps of their own (such as amendment to the
Code, training and guidance) to address the extent to which their own culture, practices and ethics were in issue were now dismissed as 'too little, too late'. Only a change in the law would do. To that end, Mr Thomas wrote to selected high profile opposition politicians (including the Conservative and Liberal Democrat leaders) as 'a warning shot across the bows of those who might be wavering and as an encouragement to potential supporters' and planned press releases and a public media initiative.
¶5.16 This was not a regulator simply enhancing public debate from an expert point of view. Mr
Thomas himself described it as 'playing hard ball'128 or, in other words, full-blooded political campaigning. As noted above, the issue was settled for the time being by the compromise solution of legislation for custodial penalties (along with an improved defence) which was not then and has not since been commenced. At the same time, correspondence continued with industry representatives over the summer of 2008 about the publication of guidance and the promotion of awareness.
¶5.17 About the compromise solution on s55, Mr Thomas himself said this:129
"This was clearly the end of this particular road. I saw the compromise in "half a loaf" terms and – although very disappointed – recognised that it would still serve some deterrent and awareness-raising purpose, though less direct or powerful than originally envisaged."
¶5.18 Reflecting more generally on his interaction with the PCC, Mr Thomas referred many times
1030to an overall sense of disappointment. This is important commentary and it is worth setting some of them out in full. H (a) "I think over time I was somewhat disappointed. Although I don't decry everything they did, it fell short of what I'd hoped they might be doing."130 (b) "The evidence shows that I went back a number of times to the PCC throughout 2005, 2006 and 2007, and tried to keep – engage their interest with it. But it is true to say that I thought their response was less strident and I think I used the word "disappointing" more than once in this context. I thought they could and should have done more."131
¶PART H | The Press and Data Protection
(c) "We thought and had some hopes that the PCC would be a better way of addressing the problem than anything to do with [pur]suing the prosecutions, which we were, at that time, recognising was going to be very expensive and demanding for the office. Now, with hindsight, I think I would have been more aggressive and more assertive with the PCC and with the Code at the outset, and they did disappoint me, as I said, in terms of their response."132 (d) "Overall – with only the limited progress recorded on page 19 of What Price Privacy Now? – I was disappointed by the response from the PCC and the Editors' Code of Practice Committee before and during 2006. I had hoped for much stronger and louder condemnation of wholly unacceptable misconduct, an explicit change to the Code, and more focussed guidance. Instead, there seemed to be a "Catch-22" view that the conduct was already illegal and that therefore not much – if anything – could be done by way of self-regulation. The exchanges did lead to guidance (with which the ICO assisted) on data protection law at large and some discussion about possible changes to the Code, but this increasingly seemed directed as much as heading off tougher sentences."133
¶5.19 Notwithstanding all of this, Mr Thomas made clear his view that his strategy (that is to say, the
continuing dialogue with the PCC, publication of his two reports to Parliament, and getting the law changed, despite the non-commencement of the changes) had proved to be very effective, at any rate in relation to the press.134 His grounds for saying so come down to what he claimed was the lack of evidence of criminal conduct within the press postdating 2006:135
"I am not saying it's been eliminated altogether – this is under the surface, clearly – but I am saying – and my successor has said this to Parliament very recently, in October of this year [2011] – that it appears that the press are now behaving themselves in this particular area."
¶5.20 Such empirical evidence as Mr Thomas offers for this conclusion appears to amount to
accepting the word of the industry.136 Without asserting the contrary, absence of evidence that undermines that assertion is not the same as saying that there is evidence that it is so. In the circumstances, it is necessary to consider the claims made by Mr Thomas for his strategy in general and to examine the paths that the ICO chose not to follow in parallel and, from
¶H there, to review whether, in more recent times, the press has, in fact, ceased to be any real source of interest to the ICO.
1031Chapter 3 Other Possible Regulatory Options
- Criminal proceedings in respect of journalists 1.1 No journalist was ever subject to prosecution as a result of Operation Motorman. Indeed,
the ICO never got as far even as interviewing any journalist in connection with examining the possibility of criminal proceedings (however limited the value of doing so might have been). There is considerable dispute as to why that happened.
¶1.2 The account provided by Alex Owens is that, within weeks of the commencement of work on
the electronic discs of the Motorman material, they were:1 "informed that we were not to make contact with any of the newspapers identified and we were not to speak to, let alone, interview any journalists. Despite our protests we were told this was the decision of Richard Thomas and that he would deal with the press involvement by way of the Press Complaints Council. It was at this moment we knew no journalist could or ever would be prosecuted in relation to our investigation. No journalist or Newspaper Group was ever spoken to by anyone from the Information Commissioner's Investigations Unit in relation to Operation Motorman. We also now knew that one of the major questions that needed to be asked but could never be asked, let alone answered was 'Why did you want all these ex-directory / mobile / family and friend telephone numbers and most importantly what were you doing with them?'"
He was, he said, given to understand that the focus of continuing criminal investigation was to be exclusively on the private investigators, the blaggers and the corrupt officials and employees:2 "Basically they'd drawn a red line, with the press and the reporters above that line and we dealt with anything below that line."
¶1.3 He described the way in which the team continued to prepare papers for conspiracy charges in
1032respect of the remaining defendants (specimen charges relating to breach of s55 of the Act), H interviewed some 50 to 60 victims and (under caution) all persons suspected of the unlawful obtaining, disclosing or blagging on behalf of Mr Whittamore. This material was passed to the ICO legal department for action and, by February 2004, the work was completed. He described having attended a conference with external counsel, in October 2003, in order to consider the weight of the evidence, and the written advice received that December which supported taking forward the conspiracy charges. counsel also directly addressed the question of criminal proceedings against journalists, advising:3 "Having regard to the sustained and serious nature of the journalistic involvement in the overall picture, there can be little doubt that many, perhaps all, of the journalists involved have committed offences.
¶PART H | The Press and Data Protection
"The inference, overwhelming, it seems to me, is that several editors must have been well aware of what their staff were up to and therefore party to it. I understand that policy considerations have led to the view that enforcement of some sort rather than prosecution is the way forward in respect of the journalists/newspapers. "I understand and sympathise with that approach. This is, I believe, the first occasion upon which the scale of the problem has come to light and it may not be unreasonable to give the Press Complaints Commission the chance to put their house in order."
¶1.4 On the basis of that policy, counsel considered whether journalists or editors should be
cautioned in the light of the evidence of the extent of their involvement and the 'often unpleasant' nature of the offending. He also registered a measure of anxiety about taking forward the conspiracy charges to the exclusion of press defendants:4 "Those defending in the prosecution might seek to make capital from the fact that the journalists are not being prosecuted. The judge might also comment on the basis that the journalists are the ones (it seems) who created the demand for this offending. With this in mind, it is a sensible precaution to equip me at some point before trial with the detail of the reasoning not to prosecute. I may need to explain or even defend the decision to the judge." There is no evidence that a detailed statement was in fact produced.
¶1.5 After completing work on the files, on Mr Owens's account:5
"we received no feed back whatsoever as to what action was being taken in relation to the press's involvement. On those occasions we did ask the question the only response we received was that 'Richard [the Commissioner] was dealing with it'." The prosecution was ultimately conducted by the CPS and he describes how the ICO was neither formally aware of or involved in the prosecution of Mr Whittamore; the next they heard, in April 2005, was that he had been conditionally discharged by the Crown Court at Blackfriars. Mr Owens left the ICO at around this time, with, he said, unanswered questions about what if any action had been taken in respect of the press, and why such prosecution as had proceeded seemed to have involved Mr Whittamore but none of the other conspirators. He concluded that 'something had gone drastically wrong with the prosecution case',
¶H producing an outcome which did not begin to do justice to the Motorman material.6 Engagement with the public: the website 37 Chapter 3: Further issues of law 38 The protection of sources and other legal privileges of the press 68 Chapter 3: Competing public interests 69 http://www.levesoninquiry.org.uk/people/assessors/lord-david-currie/ This obligation of confidence is owed by the Inquiry team to any recipient of the letter and by that recipient to me, as Chairman of the Inquiry: see para. 14(1) of the Inquiry Rules 2006 Great Britain, Royal Commission on the Press: 1961-1962: Report (Cmnd 1811) p1, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Witness-Statement-of-Dr-Rowan-Cruft.pdf p32, lines 16-21, Professor John Tasioulas, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/ Transcript-of-Morning-Hearing-16-July-2012.pdf Claire Enders, Competitive Pressures on the Press, Seminar 6 October 2011, http://www.levesoninquiry.org.uk/wp- content/uploads/2012/07/Claire-Enders-Competitive-pressures-on-the-press.pdf ibid http://downloads.bbc.co.uk/bbctrust/assets/files/pdf/about/how_we_govern/charter.pdf p3, lines 4-10, Robin Foster http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Transcript-of- Afternoon-Hearing-17-July-2012.pdf Political and Economic Planning, Report on the British Press http://www.pcc.org.uk/index.html p9, para 8, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-T-ACC-Russell- Middleton.pdf Information Commissioner's Office, What Price Privacy?, p15, para 5.1 p33, para 89, ibid p2, para 6, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Fourth-Witness-Statement-of-DAC-Sue- Akers.pdf http://www.levesoninquiry.org.uk/hearing/2011-11-14am/ http://www.levesoninquiry.org.uk/hearing/2011-11- p53, lines 23-24, Michael Gove, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of- Afternoon-Hearing-29-May-2012.pdf p28, lines 22-25, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-of- Morning-Hearing-25-April-2012.pdf p3, para 10, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-Sally-Bob- Dowler.pdf pp14-17, lines 17-3, Charlotte Church http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-of- Afternoon-Hearing-28-November-20111.pdf p5, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-Michelle-Stanistreet.pdf http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Report-by-Elizabeth-Filkin.pdf pp4-5, paras 11-13, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Lord- Condon.pdf p35, lines 10-12, Brian Paddick, ibid pp25-26, lines 12-11, Neil Wallis, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-of- Afternoon-Hearing-2-April-2012.pdf p75, line 13, Richard Thomas, ibid, emphasis added. Mr Thomas suggested, however, that s55 of the DPA which founded the prosecution powers was most likely to be the most relevant provision of the regime to the terms of reference: p3, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/First-Witness-Statement-of-Richard- Thomas-CBE.pdf pp41-42, lines 25-3, Francis Aldhouse, ibid pp11-12, paras 4.18-4.19, Alexander Owens, ibid pp6-16, para 3.3-3.26, ibid p2, para 7, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Second-Witness-Statement-of-John- Witherow.pdf Part H, Chapter 5, para 2.64 p36, lines 4-24, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-of- Morning-Hearing-25-April-2012.pdf p53, lines 18-19, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-of- Morning-Hearing-25-April-2012.pdf pp4-5, lines 16-2, David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-of- Morning-Hearing-14-June-2012.pdf pp7-8, ibid pp58-59, Lord Justice Leveson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of- Morning-Hearing-10-May-2012.pdf; p5, lines 5-11, Lord Justice Leveson, http://www.levesoninquiry.org.uk/wp- content/uploads/2012/05/Transcript-of-Afternoon-Hearing-15-May-2012.pdf pp87-88, lines 6-2, ibid p52, lines 14-21, ibid pp3-4, lines 19-3, Robin Foster, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Transcript-of- Afternoon-Hearing-17-July-2012.pdf Home Office Large Major Enquiry System p46, lines 20-21, Lionel Barber, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of- J Morning-Hearing-10-January-2012.pdf pp8-9, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Professor-Roy-Greenslade-of- City-University.pdf p14, lines 13-14, Lord Black, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-of-Morning- Hearing-1-February-2012.pdf p10, lines 10-22, Lord Black, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Transcript-of-Morning- K Hearing-9-July-2012.pdf p3, para 6, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Media-Regulation- Round-Table.pdf p53, lines 9-22, Professor John Horgan, ibid Part K, Chapter 2 Part K, Chapter 3, para 5.14 Part K, Chapter 7, para 4.16 See for example: Application 22954/93, Ahmed v United Kingdom (1998) 29 EHRR1 at para 70, and Application 11800/85, Ezelin v France (1991) 14 EHRR 362 at paras 37 and 51
¶1.6 On Mr Owens's account, therefore, the suggestion within the Motorman material of prima
facie criminality within the press could and should have been taken forward to prosecution. He said "we were in a position to prosecute everyone in the chain from the 'blagger' right up to the journalists and possibly even the newspaper groups".7 However, he said that the intervention of a policy decision by Mr Thomas to proceed with the matter himself and exclusively in dialogue with the PCC as a result of, or additionally because of, a reluctance to engage directly in enforcement action in relation to the press prevented this from happening.
¶1.7 This account was vigorously disputed by both Mr Aldhouse and Mr Thomas. The evidence
1033of Mr Aldhouse was that there was no policy, or none that he was aware of, of holding back from the prosecution of journalists. He was clear that he was not involved in the operational decision-making at all; however, if he had been asked, he would have considered that there
¶Chapter 3 | Other Possible Regulatory Options
was indeed a case for taking the involvement of journalists and newspapers in criminal behaviour further. Nor would he have thought resourcing problems a conclusive argument against doing so: he thought that it would have been possible to have discussed the possibility of supplementary funding with the sponsoring government department. But he did not apply his mind to such considerations at the time; it was not his place to do so. He was aware of a measure of frustration in the investigations team that no action had been taken in relation to the press, and of some discussion about the disappointing criminal process in the office, but could recall no detail.8
¶1.8 Mr Thomas also denied any positive policy decision or instruction being given not to proceed
with criminal investigations into press conduct. This denial was emphatic and can be enumerated: (a) "there was no such policy decision, certainly not at the early stage";9 (b) "[it] is possible that Mr Owens has somehow confused or conflated all the dates and interpreted that [Mr Thomas going to the PCC] as some sort of policy or some sort of instruction, but that was not the case";10 (c) "[if] there was a policy, it was not one which I had any hand in, one which I knew about, which I made or which I was told about";11 (d) "as far as I'm aware, there was absolutely no such policy and I can't think why there would have been such a policy";12 (e) "what I'm trying to say – and I hope I'm coming across very clearly – is that there was no policy from the outset that we weren't going to go against the press";13 (f) "Q: Your evidence is that the policy steer didn't come from you? A: Absolutely not";14 (g) "there is clear evidence that there was not a policy conclusion even at that point [the approach to the PCC]";15 (h) "I don't accept that there was a policy decision. I don't accept that we abandoned the possibility of prosecuting journalists."16
¶1.9 Indeed, Mr Thomas was insistent in his evidence that there was no 'conscious decision' at all
1034not to prosecute journalists.17 He explained that in two different ways although, on the face of it, these are not entirely straightforward to reconcile. He said both that he assumed that H in fact the office was making progress with the prosecution of journalists as they would with any other criminal investigation,18 and also that there was an active plan to keep the option of prosecution alive but to wait and see first how the conspiracy prosecutions being undertaken by the CPS fared, and in due course, if all went well, to activate them.19
¶PART H | The Press and Data Protection
¶1.10 Taking the second of these first, the problem with any 'wait and see' strategy was articulated
by Mr Owens. He described his response to the way in which the discontinuance of the criminal proceedings for conspiracy was described in What Price Privacy? in the following terms:20
"This was a great disappointment to the ICO, especially at it seemed to underplay the seriousness of section 55 offences. It also meant that it was not in the public interest to proceed with the ICO's own prosecutions, nor could the Information Commissioner contemplate bringing prosecutions against the journalists or others to whom confidential information had been supplied."
¶1.11 As Mr Owens explained:21
"It may be correct in relation to the others, you know, the blaggers and the thing, but you could never go back after three years and contemplate prosecuting journalists. They'd never even been investigated. And I – there's enough legal people here to know if I – I kept evidence – you can't put – if you have a conspiracy, you can't put five people on the back-burner and wait and see how you got on with the same five people in the front that's getting prosecuted, because you got a good result, right, we'll go and prosecute them as well. Well, they're all part of one conspiracy. You either investigate them all, or those five you have to say we're not going to investigate them which means we're not going to prosecute them. I don't know whether that would be - is the correct word abuse of the justice system?"
¶1.12 In my judgment, as a matter of criminal process, the proposition that the journalists were not
investigated because there was a deliberate strategy which had been thought through (in the light of evidence that was known about and understood) simply to see how the prosecutions against the 'middle men' went before proceeding against the press is neither credible nor sustainable. In any event, there is no contemporaneous evidence that this was indeed the strategy. This is very different from a decision not to proceed for good operational reasons, followed by a later re-evaluation.
¶1.13 The other argument advanced by Mr Thomas was that there was indeed an active policy to pursue criminal inquiries into the activities of the press, but that they ran their operational H course to no effect. He suggested a number of operational reasons for the ICO not, in the end, proceeding with criminal proceedings in respect of the press. They included:
1035(a) the inevitability that severe and disproportionate logistical difficulties would be faced, including the commitment of significant resources;22 (b) legal uncertainty about the difficulty of proving 'procuring' of disclosure by the press (which would require establishing knowledge or recklessness about the lack of the individual's consent) and about the possible deployment of public interest defences by journalists;23
¶Chapter 3 | Other Possible Regulatory Options
(c) an understanding that Mr Owens's extended sick leave and anxieties about his reliability as a witness, influencing legal advice to withdraw from prosecution action;24 (d) a strategic view that it would be preferable to defer conclusively to the CPS prosecution of the corruption cases, "giving precedence" to the corruption proceedings because they were "more serious" and carried higher sentence maxima than the cases which the ICO could prosecute;25 (e) a strategic preference for proceeding against the 'middle-men', at the heart of the organised trade in confidential personal information;26 (f) the 'perversity' of the outcome in the Whittamore prosecution: the conditional discharge was a reason any further prosecutions would not be in the public interest, and in particular "completely extinguished any possibility whatsoever of prosecuting journalists";27 and (g) a sense that "any formal action, particularly a prosecution, was likely to be, if you like, that much more difficult because there will be less sympathy for the celebrity." This is a jury point, perhaps, about the unattractiveness of bringing cases in respect of celebrity victims who might, however unfairly, be considered to have compromised their own data protection entitlements.28
¶1.14 The difficulty with any or all of these explanations is that, on Mr Thomas's own account, the
Inquiry saw no evidence that at the time the ICO went through a strategic decision-making process which actively considered any of these points and reached a conclusion on them. There clearly would have been the need for major decisions to have been taken one way or the other about the allocation of resources, significant operational planning and close liaison with the police and the CPS. There is no evidence that any of this happened. On the contrary, the best evidence available to the Inquiry suggests that:
1036(a) there was prima facie evidence of criminal behaviour by journalists; (b) this was investigated up to a point within the ICO by paper analysis and by interviewing a selected group of victims; (c) external counsel encouraged the view that the evidence of criminal conduct by journalists was persuasive and that there were merits in taking the matter further; but (d) the matter was not taken any further by the ICO in relation to data protection offences, not even to the stage of approaching a single journalist either to be interviewed or for H a statement.
¶PART H | The Press and Data Protection
¶1.15 Mr Thomas was either unaware that the matter was not proceeding within his office, or
aware of it without challenging that state of affairs. Either is problematic. The first suggests a disconnection from one of the biggest operational cases the ICO ever dealt with to a degree which is difficult to understand. After all, this was a case on which he himself spent many years pursuing at a strategic and political level. There was this exchange:29
"Q: When the prosecution started, there were no journalists there. Did you not think about that? A: I wasn't involved in these meetings. Q: No … not the meetings, but you were alert as to what was going on with the prosecution process? A. Only in very general terms and I have no recollection." At the very least, the second explanation raises questions about the extent of the interest that Mr Thomas had in this aspect of the enforcement of the data protection regime notwithstanding the extent of the abuse revealed by Operation Motorman.
¶1.16 This important matter was directly put in this way by Robert Jay QC to Mr Thomas when he gave evidence:30
"May I try and sum up the position in this way? Given two facts which we know, Mr Thomas – the first fact is that the journalists were never interviewed by your office and the second fact is that such an interview would be a sine qua non to a prosecution, out of fairness to the journalists on the one hand, in order to obtain further evidence - does it not follow that either there was a policy decision not to pursue that course or, alternatively, there were operational failures or decisions by the investigators not to carry out an elementary step, namely to interview?"
¶1.17 Mr Thomas challenged that dichotomy, but only by way of suggesting that an alternative
was the 'wait and see' policy which is not, itself, obviously compatible with an omission to interview any journalist in a timely fashion. Mr Jay therefore put the analysis to him even more directly:31
¶Q. "So at the moment I am thrashing around mentally to see what other alternative H there might be beyond a policy decision on the one hand or incompetence in your
investigation officers on the other." A. "Well, if you want to put it in those terms, I have to put it to the latter, but I am absolutely – you know, absolutely clear because I wouldn't have done any of the things I had done right through 2005, 2006, 2007 if I had thought at any time that I or anybody else had said: 'Back off the journalists'."
¶1.18 This is an answer which has difficulties at many levels and, in fairness to Mr Thomas, may not
1037bear too close an analysis. As between a policy or an operational failure there are perhaps levels of intermediate gradation. It is, however, necessary to take stock of the issue of non- prosecution of journalists by the ICO.
¶Chapter 3 | Other Possible Regulatory Options
¶1.19 In the first place, it does not seem that there need have been any reason from the outset for
the ICO not to have proceeded down the path towards active pursuit of prosecution. Mr Jay put it this way:32
"But if all one needed to do: "Let's cherry pick the best cases of illegality. The friends and family cases, the one or two police national computer cases. We'll interview the journalists in those cases. We might interview the editors." That is a fairly narrow exercise. You can then assess how strong the case is. After all, if the evidence is strong enough, you might even get guilty pleas. Who knows?"
¶1.20 A lot of evidence was available, and a good deal of work was done in the early stages. Mr Owens
took the point that it might not have required a huge amount of delving and interrogation by him in relation to the relevant journalists to get the answers he needed to the questions in his mind (which principally concerned why they wanted the material). Some might have declined to answer; of those who answered, some answers might have incriminated journalists, others might have exonerated them.33 But the questions were never asked. It would not have been operationally impossible, and ought perhaps to have been operationally rather attractive, to have proceeded in the way Mr Jay hypothesised. But there was no indication that this was ever contemplated, far less attempted.
¶1.21 In the second place, although I recognise that the conditional discharge imposed on Mr
Whittamore meant that there was little practical prospect of resuming criminal investigations in relation to the press for the reasons outlined above, such an outcome was hardly possible to foresee. The record that the ICO made of the hearing before His Honour Judge Samuels QC in the Crown Court at Blackfriars in April 2005 (including his sentencing remarks)34 does not on the face of it even support the proposition that the prosecution of journalists was out of the question following the conditional discharge of Mr Whittamore.
¶1.22 From this note, it is possible to derive the following propositions:
(a) The sentence in this case was clearly to a degree based on the particular position of a co-defendant (previously sentenced in ignorance of this prosecution) and the unchallenged personal circumstances of Mr Whittamore who was described as of previous good character; in a state of depression; 'reclusive'; 'probably a broken man' of limited means, unemployed and effectively unemployable in his previous line of work. H (b) There were procedural considerations militating strongly in favour of a swift disposal of the case. (c) There is no indication at all that the sentencing judge considered the offending behaviour not to be serious in nature; on the contrary, he observed: "The vice of the primary conspiracy was to make known to the press information which on any view ought to have been confidential … I refer to the vice and I do so again as a warning to others; others cannot expect leniency as seen today."
¶1.23 To be fair to Mr Thomas and the ICO, it is right to record that there were some issues about
1038the nature and extent of the co-operation between the ICO on the one hand and the police on the other. Mr Owens said of the prosecution:35
¶PART H | The Press and Data Protection
"We had never been advised that the matter was due before the courts. We were never given the opportunity to attend even though we had been the investigating officers and were never given any details of what had happened in relation to all the other defendants we had anticipated would be jointly charged with Whittamore for conspiracy… we did hear that there had been some conflict between the ICO legal team and the Crown Prosecution Service/Metropolitan Police…"
¶1.24 Mr Thomas put the matter in this way:36
"I also understand that there was a feeling that the prosecutor had not accurately conveyed some of the material to the court vis-a-vis the journalistic aspect, and I can't turn it up straight away now, but some of the notes you've had from the ICO's legal file indicated that the barrister for the CPS had not perhaps conveyed the full picture. We'd sort of – if you like, were not actively engaged or involved in that."
¶1.25 It is neither possible nor necessary to reach any conclusion about the extent to which a
failure of liaison impacted on this prosecution, although a close and mutually supportive relationship between ICO, police and CPS in this type of case is clearly important.
¶1.26 Putting to one side the issues which flow from a consideration of the result of the prosecution,
and reverting to the initial decisions, the conflict between the investigator, Mr Owens, and Mr Thomas remains real. Mr Owens bluntly put the matter in this way:37
"In conclusion I would summarize by saying it is my opinion that: • ICO's decision not to investigate any journalist in relation to Operation Motorman was a wrong decision. • This decision was certainly not based on any advice given by counsel or on any lack of evidence, as ICO would have everyone believe. The decision had been made long before the involvement of any Counsel or opinions being requested and there was overwhelming evidence that many of the journalists did know or at least should have known the information they were requesting could only be obtained illegally and what they were requesting was not for a purpose which would carry any form of 'public interest' defence.
¶H • The decision not to pursue any journalist was based solely on fear - fear of
1039the power, wealth and influence of the Press and the fear of the backlash that could follow if the press turned against ICO. • The publication in May 2006 of 'What price privacy' was no more than an attempt to lock the stable door after the horse had bolted in an effort to cover up the fact that ICO had failed in its duty to conduct a full and proper investigation into the conduct of journalists at the time when they could and should have. "Throughout the whole of the time the Motorman investigation was on going there was never any mention or suggestion of any report being commissioned for Parliament. I feel it was no coincidence that this report was not published until May 2006, only a few weeks before the Mulcaire scandal broke. It is my belief that when ICO became aware that the Metropolitan Police were conducting yet another investigation involving more
¶Chapter 3 | Other Possible Regulatory Options
wrong doings by the Press, they decided to pre-empt and deflect any criticism which was bound to be directed towards them in relation to their lack of action against the Press in Operation Motorman. "All the evidence published in this report had been gathered and had been available since March 2003, so if as David Smith stated, again in the Panorama Report, ICO wanted to send "an effective and final warning" then why did it take over three years to prepare it, and not publish it until 13 months after the prosecution against Whittamore had concluded."
¶1.27 These are stark allegations, which Mr Thomas firmly invited the Inquiry to reject. One of
his reasons was that Mr Owens' evidence must be regarded as unreliable as he had parted from the ICO on unhappy terms and that must be taken to have clouded his judgment on this matter. However, insofar as this Report comes to any conclusions on these issues it does so on their own merits rather than on the basis of speculation by Mr Owens on matters not within his personal knowledge. On the other hand there is no reason to doubt that Mr Owens' evidence was, at least, an authentic description of his own perspective. Furthermore, it cannot be overlooked that, by their own accounts, the senior management of the ICO had placed Mr Owens and his immediate superior in a position in which their perspectives were operationally determinative: it was a matter for them.
¶1.28 I start from this proposition. The evidential 'treasure trove' of the Motorman material, the
questions of public interest and of the integrity of the data protection regime, the seriousness of the breaches of trust evidently involved and the potential harm occasioned to a very large number of individuals all make it very hard to reconcile the evident lack of analysis or a discernible action plan in the ICO for consideration of criminal investigations into press misconduct. Whether, in the end, the decision was taken to pursue those investigations or not, the matter should have been consciously and conscientiously considered and decided upon from an operational and strategic point of view. The decisions should have been reasoned and recorded. The evidence is that this did not happen. It is possible (although I do not say more) that a significant opportunity was thereby lost to challenge and check elements in the culture, practices and ethics of the press that were insufficiently mindful of the law, the rights and entitlements of individuals, the public interest and the obligations of good practice.
¶1.29 Before reaching any firm conclusions, however, it is also necessary to provide the context
of the alternatives available to the ICO, the choices made and the outcomes in practice. Mr H Thomas said:38
"it's important to record that prosecution is not the only way to deal with a particular problem." Operation Motorman was clear evidence of a problem in the culture, practices and ethics of the press. It was not dealt with by criminal investigation and prosecution. The ICO was, on its own account, not primarily a prosecuting authority; it was a statutory regulator, provided with a range of standard regulatory powers and had a range of other powers and operational choices available.
1040relationship between his understanding from his staff that the prosecution of journalists was not a plausible option, and his decision to take the matter to the PCC. He accepted that thought was to a degree ex post facto rationalisation, and it is not certain from the chronology
¶PART H | The Press and Data Protection
that it can have been the case (he also said elsewhere that the reason he refused to go into operational detail with the PCC was that the prosecutions were still "under way.")39 But, in the light of the eclipse of the prosecution option, the way he put the position of the ICO in relation to what the evidence discovered in Operation Motorman revealed about the culture, practices and ethics of the press must surely be regarded as authentic:40 "We can't leave it there. We must do something." The 'something' in Mr Thomas's mind was his twin-track political strategy. But the question also has powerful operational resonance. If the ICO was not to tackle the press by the route of criminal investigation, the 'something' else must be considered.
- The use of regulatory powers
¶2.1 One of the striking features of the narrative that started with Operation Motorman is that
neither during the criminal investigation nor at any time thereafter does it appear that there was any evaluation of alternative operational steps which remained available. On the contrary, the ICO appears to have put faith only in prosecution and the twin track strategy championed personally by Mr Thomas. However, the 'treasure trove' of material gave rise to a number of important operational issues and permitted a variety of regulatory responses.
¶2.2 There was certainly the question of future deterrence, which featured so prominently in
Mr Thomas' campaign. There was also the wider operational question already noted: it was unlikely that Mr Whittamore was the sole operator in this evidently lucrative market, so how big, in fact, was the problem? This was something to which only the press, as drivers of the market as evidenced by the Motorman material, were likely to be able to provide a clear answer.
¶2.3 There were issues at a more specific level as well. The Motorman material suggested that the
press was in possession of a quantity of material in breach of the data protection principles and of the rights of the individuals involved. If their acquisition of that material was unlawful, then their continuing holding and use of the material was likely to be unlawful and unfair also. Motorman raised questions not merely of past illegality (obtaining the information) but of present and continuing illegality.
¶H 2.4 That, indeed, was the distinguishing feature of the role of the press in the narrative. The
1041blaggers and the corrupt officials and employees could be identified and their practices terminated. But, unless they had taken active steps (which might include destruction) in relation to the personal information, the press were likely to be persisting in conduct unlawful under the data protection regime on a daily basis. Even holding information unlawfully and unfairly is a potential breach, whether or not accompanied by further breaches, intended breaches, or indeed any further plans or actions at all. Every day which passed raised acute practical and operational issues in relation to the press. How much personal information were they holding unlawfully, and how should the situation be remedied and lawfulness assured? These issues were live and acute, and not even prosecution of the press would have been a complete answer to them. Although criminal investigation would have got to the bottom of the specimen cases pursued and no doubt would have had a salutary chilling effect of some sort on unlawful practice, it could never have been the thorough-going systemic look at the Motorman material in the hands of the press, nor the systemic rectification of any continuing unlawfulness, which the evidence required.
¶Chapter 3 | Other Possible Regulatory Options
¶2.5 The seizure of the Motorman material was, in other words, a very major case of the sort which
statutory regulators are created (and given practical powers) to deal with. The press were under continuing legal obligations to consider what steps were needed to clean up their own operations from the products of the unlawful trade in personal information. Even if defences may have been available in some cases to criminal charges, a significant number of questions would have been outstanding as to the extent to which the press had complied with their civil legal obligations and with standards of good practice under the data protection regime.
¶2.6 It is therefore significant that Mr Thomas confirmed that the ICO did not, at any point, come
close to considering the use of the civil enforcement powers at their disposal either to seek further information from the press or to require them to comply with the data protection regime. Evidently, "some sort of passing thought was given to it but nothing materialised". That was for two principal reasons. The first was that these powers were, in any event, rarely used. The second was that "everybody knew that to a very large extent the powers of the office were very constrained indeed when it came to dealing with the media".41
¶2.7 It is evident, as considered at the outset of this Part of the Report, that there were questions
about the operational experience in the ICO at the time of the deployment of its formal regulatory powers, and particularly so in relation to the press. That is further considered below, as is the question whether the investigative and enforcement powers of the ICO in relation to the press were, indeed, as a matter of law insufficient to allow the questions raised for the press by Motorman to be effectively tackled by the regulator.
¶2.8 At this stage, it is sufficient to articulate the following concerns:
1042(a) The Inquiry saw no evidence that any of these matters were the subject of serious consideration within the ICO. (b) The Inquiry received a quantity of evidence as to how far the Motorman material could be considered prima facie evidence of criminality on the part of journalists (not least because of the question of intent), but it is not credible to argue otherwise than that it was prima facie evidence of extensive unlawful and unethical data protection practice. (c) Whether the press would have had an answer to that prima facie unlawfulness certainly fell to be considered and, to such extent as it did, so the evidence is that the ICO was of the view that that was highly unlikely to be the case.42 The substantive exemptions from the principles and rights of the data protection regime in favour of the press may have H been extensive, but they were not limitless. It was not open to the ICO on the evidence of the Motorman material to conclude with any confidence that the press had been acting within its rights so far as personal information privacy was concerned. (d) The procedural hurdles standing in the way of formal proceedings by the ICO against the press may have been daunting – but it is not credible that Parliament intended them to be insuperable. If ever an operational data protection issue arose where active contemplation of regulatory action in respect of the press presented itself (I put it no higher), Motorman was surely that case.
¶PART H | The Press and Data Protection
(e) Not only was there no evidence that serious operational attention was given to these issues, either at the time or at any point since, it is noteworthy that at no stage since the Motorman material was found has the ICO raised as an issue the sufficiency of its powers to tackle breach of the data protection regime by the press.
¶2.9 In relation to this last point, at no point during his long campaign on custodial penalties did
Mr Thomas seek reform of the provisions applying the civil law to the press. The present Information Commissioner, Christopher Graham, does not do so today. That left the Inquiry with the question of whether the powers available to the ICO were in fact adequate for the task of pursuing with the press the continuing operational issues raised by Motorman, but were neglected by the ICO; or whether they were inadequate, and the ICO has chosen, for whatever reason, not to draw attention to their inadequacy. Both Commissioners have strongly argued on these points that they have other priorities and that, whatever the legal position, it would not have been right for them to place the practices of the press among those priorities. I reflect on that in due course.
¶2.10 Not for the last time in this Report, a haunting question asked by Mr Owens arises. He
described himself musing on the operational implications for the press of the Motorman material in this way:43 "It's our job to take them or indeed anyone else on, that's what we are paid to do. If we do not do it, then who does?" The question is even more pertinent in relation to civil law enforcement under the data protection regime than it was to the question of prosecution. The CPS can always take prosecution decisions (including in relation to s55) and consider the matter from the perspective of the totality of any apparent criminality. Only the ICO is able to take regulatory enforcement action. If anything, the pertinence of this question has only increased over time.
¶2.11 None of this is to suggest that the ICO should have had recourse to testing its formal
investigatory and enforcement powers in practice in this case, but simply that it might have been expected to give the question urgent and detailed consideration. No regulator would expect as a matter of routine to make the formal assertion of its powers its first reaction, although in an egregious or systemic case (and Motorman was surely such a case) that may be appropriate. To the extent that criminal proceedings remained in active contemplation there
¶H would in any event have been a need for detailed consideration of the potential interactions
between criminal and civil investigations. However, if not formal action, possibly as a prelude to the active consideration of formal action, the operational imperative to 'do something' about the Motorman problem with the press might at least have been expected to direct the mind of the ICO to the possible effectiveness of a range of informal steps.
- Engagement with the industry: guidance and promoting good practice
¶3.1 Under the DPA, the ICO has a general legal obligation to:44
1043"promote the following of good practice by data controllers and, in particular, so to perform his functions under this Act as to promote the observance of the requirements of this Act by data controllers".
¶Chapter 3 | Other Possible Regulatory Options
The press organisations involved in the Motorman case were undoubtedly data controllers for these purposes and 'good practice' can refer to standards over and above the strict legal requirements of the data protection regime. Therefore, even assuming that the ICO had considered that, in the case of the press, its own powers were too restricted or restrictive for formal regulatory action to be the best way to proceed, its duty to promote good practice would still have been engaged. Mr Thomas described his entire twin-track strategy to have been undertaken in furtherance of his duty to promote good practice but the duty was also relevant to the operational imperative. That imperative was to tackle the questions raised by the fact that, so far as the ICO had reason to believe, the Motorman material remained in the hands of the press in circumstances which, at the very least, raised specific and systemic questions of good practice, standards and ethics.
¶3.2 The first recourse of a regulator is not usually to formal proceedings. In those circumstances,
it is more usual to make informal contact in order to follow up an apparent problem (which is any practice falling short of desirable standards), hear the other side of the case, and seek to engage in a detailed dialogue about the nature and extent of the problem and the steps which might be taken to address it satisfactorily. At the very least, the Motorman material revealed to the ICO that the press had engaged in questionable practice in relation to individuals' information, that it remained in possession of that information in circumstances which, again at the very least, raised questions about their conformity with good practice, and that good practice would require some contemplation from the individuals' point of view as to whether steps were needed to improve the situation. But the Inquiry saw no evidence that any of these matters, any informal approach to the press data controllers or any assessment of the immediate practical steps suggested by good practice, were actively contemplated let alone put into effect.
¶3.3 Mr Thomas said that he did, indeed, have it in mind to write to the various journalists and
editors involved, drawing attention to the fact that they were 'incredibly lucky' not to have been prosecuted (or, it might have been added, not to have been made the subject of formal investigatory or regulatory action).45 Pressed as to why no attempt was in fact ever made to engage with the individual newspapers, his answer was that, in going to the PCC, he had "dealt with them all collectively".46 Apart from the identified concern that this suggests a lack of understanding of the role and responsibilities of the PCC, it implies that these were mutually exclusive approaches. It also suggests that there was no imperative to deal with the problem in the short term and in a practical way: that is to say, to address the issue not just H of the press ceasing to commission further unlawful trade in personal information but also of what it was doing with the information already in its possession as a result of that trade. As noted above, the PCC itself urged Mr Thomas to engage directly with the industry and, in any event, showed little appetite to take the responsibility that Mr Thomas wished to pass on.
¶3.4 It is also significant that there seems to have been no attempt to engage directly with the press
1044(even indirectly, through the PCC) in the run up to the publication of What Price Privacy?47 That report was of course conceived principally from the perspective of a policy decision to the effect that the introduction of custodial penalties for s55 was to be the principal means of impacting on the unlawful trade in personal data. Considered, however, from an operational point of view, the lack of engagement with the press or any part of it on either the text or the
¶PART H | The Press and Data Protection
data tables is both striking and surprising. It afforded the industry no possibility of verifying the data (the consequences of which, in at least one case, are considered further below). It also missed what might very well have been the prime opportunity to discuss with the industry what practical lessons could be learned and what steps they ought to have taken or be taking not only to remedy any persistent problems, but also to secure good practice for the future. A not insignificant 'carrot' might have been a willingness to include an account on that exchange in the report to Parliament, thereby demonstrating that the press were taking the issue seriously.
¶3.5 Mr Thomas, however, said that he simply relied on the publications of his reports to Parliament
to engender awareness amongst proprietors and editors at the national level of the ICO's concerns.48 In relation to What Price Privacy? he reported:49
"I would say that was promoting good practice, and sending it to a hundred organisations with specific personalised letters saying 'this is not acceptable' … I would say this is very much promoting good practice."
¶3.6 In reality, however, this was all rather late. It was three years after the event by which time the
audit trail in relation to the Motorman material in the hands of the press was likely to have gone very cold indeed. Three aspects of the conduct of the ICO are difficult to understand. The first is that if it was possible to prepare a large individual awareness exercise, complete with personalised letters in order to draw attention to What Price Privacy?, and if that was seen as an effective way to discharge the duty of the ICO to promote good practice, there is no reason why similar attempts could not have been made at the time to contact the industry directly. Second, while making every allowance for the decision to approach the PCC as a form of collective engagement with the press, the ICO did not recommend specific good practice steps to be promulgated to the industry as well as 'general condemnation'. Third, when it was becoming increasingly clear that the PCC was not going to act as an effective interlocutor with the industry on behalf of the ICO's operational concerns, even then, the ICO did not seek to communicate directly with the industry itself.
¶3.7 Even after the publication of What Price Privacy? the process of preparing and issuing
effective good practice guidance to the press was faltering and inconclusive. Of the document eventually produced, Mr Thomas said:50
¶H "It was a useful guidance note but I suppose I was a little concerned that it buried the
section 55 warnings into a wider context of talking about the Data Protection Act and its application to the media more generally, and I think even now I would say that it was a shame it didn't just focus on section 55 in the way that our own note, which we produced, I think, in 2006 or 2007, what we call a good practice note, that was a very, very clear one and a half pager as to how the press should take seriously section 55."
¶3.8 In reality, the ICO did not direct the press towards the practical steps it needed to take,
1045not least in the maintenance of proper audit trails in relation to its handling of personal information (especially, as Mr Thomas had noted, in the event of an intention to rely on the public interest as a defence to s55). Rather, the process had become absorbed into managing the defensive stance of the press in response to the s55 campaign. A part of that response was the alleged discomfort of the press with applying legal public interest tests, notwithstanding the obvious centrality of judgments on the public interest to the routine
¶Chapter 3 | Other Possible Regulatory Options
standards and ethics issues with which the press is inevitably concerned on a day to day basis. Public interest judgements were also the daily bread and butter of the FOI regime which also fell within the ICO's regulatory remit and on which extensive and detailed guidance has been published. Rather than pursuing the idea that the PCC would guide the press on this matter operationally, along with the other possible lines of approach, it was eminently feasible for the ICO simply to grip the issue both efficiently and expeditiously.
¶3.9 Furthermore, the ICO was under a continuing legal obligation to promote good practice,
including by considering the issue of guidance, either specific or general. It is not easy to understand why the ICO persisted for years in trying to force the hand of the PCC to issue guidance when it had statutory powers of its own to do so; moreover, these were statutory powers which it was under a legal obligation to keep under constant review. Having diagnosed a need for guidance, and in the absence of a satisfactory and timely response from the PCC, it could have propelled the process forward with a comprehensive draft of its own, if necessary in direct consultation with the industry. There is no evidence that it contemplated doing so.
¶3.10 As noted above, one of the issues of contention between the ICO and the PCC over the course
of its dialogue was the demand of the PCC for access to the detail of the Motorman material before it would consider itself able to take direct action on any matter with the press (this was Sir Christopher Meyer's request for 'beef'). The DPA includes a number of provisions inhibiting disclosure by the ICO of confidential material it has acquired in the exercise of its functions;51 this is a very standard feature of regulatory regimes. Those provisions would have inhibited the public disclosure of the Motorman material, and were an operative reason for the presentation of the material in the What Price Privacy? reports in summarised form only. Those provisions might also have rightly restrained the ICO from detailed disclosure to the PCC. But they would not have restrained discussion by the ICO of the relevant parts of the Motorman material with the individual press organisations (data controllers) concerned for the purposes of furthering their compliance with the legal or good practice requirements of the regime. At the point at which Mr Thomas declined to share the detail of the Motorman material with the PCC, he effectively acknowledged that detailed and specific discussions could only ever have taken place directly between the ICO and the individual press organisations.
¶3.11 On his own account, Mr Thomas was emphatic about the lack of engagement directly by the
ICO with the press. When giving evidence, he told the Inquiry that "I don't think I've ever had a conversation to this day with an editor"52 (although when prompted he recalled that he had, of course, spoken to editors, including Mr Dacre, in the context of his interactions with the H Editors' Code Committee). But again, it was only the ICO that could have conversations with individual press organisations about their continued retention of the Motorman material; there was nobody else.
- Engagement with victims 4.1 The Motorman material was evidence in the hands of the ICO that a very large number of
1046people appeared to have been the victims of unlawful use of their personal information. Those individuals had rights and entitlements under the DPA, and in the civil law more generally, including rights in relation to confidence and privacy. The data protection regime, in common with very many other regulatory regimes, provides for two routes of law enforcement. These are the exercise of investigatory and enforcement powers by the regulator and the availability of rights of action by individuals for the enforcement of the law in their own cases.
¶PART H | The Press and Data Protection
¶4.2 One of the defining features of contravention of information privacy law is that,
characteristically, the victim may not be aware that it has happened or, if aware, may have no means to find out how it happened, who was responsible, or indeed to move beyond the realms of speculation.53 This feature was both obvious and commonplace when consideration was directed to the Motorman material, and was equally a very real concern which was underlined in the evidence of a number of Core Participants who complain about press intrusion.54 The ignorance of victims of the nature, or even existence, of the wrong done to them is, indeed, a principal reason for the existence of a regulatory authority with investigative legal powers.
¶4.3 The two approaches to law enforcement are not, of course, mutually exclusive. Christopher
Graham expressed the connection by describing what he saw as a core element of the ICO's job: 'to arm the consumer, to educate and empower the consumer to exercise their information rights and to help them to assert them.'55 That role operates at both the general, educative level, and at the level of assisting individuals who have concerns, including for example by helping them to make subject access requests.56 Where the ICO comes upon evidence of unlawful activity of which the victim is not aware, it has some important operational choices to make. Matters to be taken into account will include the quality of the evidence, the nature and extent of the apparent breach, whether or not it is continuing, the practicalities of contacting victims, and so on. These were considerations which were brought to bear, for example, in the operation the ICO undertook in the wake of the loss by HMRC in late 2007 of discs containing large quantities of personal information relating to the recipients of child benefit. In part, at least, that was for the purposes of alerting the victims to the potential need to take security measures against the possibility of the information falling into the wrong hands and being used for fraudulent or other unlawful purposes in the future.
¶4.4 No such exercise appears to have been contemplated in the Motorman case, a matter which
was directly raised in the Inquiry by potentially affected Core Participants. As noted above, Mr Owens' team did approach some 30 to 40 victims for the purposes of their criminal investigation, and obtained witness statements. But engaging victims on the footing of a criminal investigation is a specific and limited kind of exercise and there is no evidence that the ICO engaged even those victims it approached for any broader purpose.
¶4.5 Aside from the primacy given to the criminal investigation at the time, Mr Thomas suggested that there were two principal reasons for failing to engage with the victims. The first was H logistics, given the large number involved. The second was considerations of privacy, on the
basis that alerting victims could raise questions about possible further invasions of their privacy, as might occur, for example, if third parties (including the victims' family members) came to be aware of information about them which the victim had been at pains to conceal.57
¶4.6 Neither of these explanations fully accounts for the failure to take any operational hold of the
1047situation affecting the Motorman victims, although both concerns are certainly important and relevant. The former is a strategic challenge of a sort which the ICO has addressed on other occasions. The latter is a matter of process, and of a nature which the ICO was well- placed to address. Neither points to complete inaction; neither would be insuperable given case by case consideration.
¶Chapter 3 | Other Possible Regulatory Options
¶4.7 The consequences of the failure to alert the victims were much debated before the Inquiry.
The ICO had placed considerable faith in the success of the political measures they took in response to Motorman to ensure that there was an effective stop to further victimisation for the future. It is, however, hard to avoid the conclusion that the position from the point of view of the victims was insufficiently taken into account, not merely operationally for the ICO, but also as a matter of respect for their rights and entitlements and so that they could properly consider their own law enforcement options, and take measures to deal with the risks of further victimisation to which they could be subjected. That conclusion was also part of Mr Owens' reflections:58
"We also had the unanswered outstanding question relating to the remaining thousands of people who had never been told they had been a victim of crime having had their car checked, their ex directory telephone number unlawfully obtained, their private lists of family and friends sold to the Press and so on…. I also felt very strongly that the thousands of victims identified in Operation Motorman also had a right to know they had been victims."
¶4.8 The extent to which the perspective of the victims was overlooked may be connected with
the fact that the seriousness of the wrongdoing suggested by the Motorman material led the ICO in two directions (prosecution and the campaign on s55) which were both in the criminal domain. Exclusive focus on the criminal aspects of what had been discovered, without consideration of the wider regulatory context, carried a potential (if not an inevitable) risk that the victims would be left out of the picture. That risk is evident in both the operational and political reaction of the ICO to Motorman.
¶4.9 The obvious question arising from the failure to alert the victims has come to the fore in
relation to all of the paths not taken by the ICO in response to Motorman: why, given the obvious operational magnitude and seriousness of this case, was action evidently given such a low priority? This is not a theoretical or historical question. The position of the victims was a contemporary issue for the Inquiry. While the prospects, in practical reality, of the ICO taking criminal or regulatory action in relation to Motorman may be regarded (absent further, fresher, evidence) as long since extinguished, individual victims expressed their concerns in terms of whether their involvement in Motorman might not have been part of a much wider context of their treatment at the hands of the press. There remained alive in their minds that question which Mr Owens said he had wanted to pursue: why did the press want their H information? And the follow-up questions also arose, including what did they do with it and where was it now? This was the subject of a further ruling.59
¶4.10 Of all of the questions which arose before the Inquiry about the operational steps which
1048the ICO could have taken in response to the Motorman material, this question of alerting the victims has clearly remained the most acute, notwithstanding the intervening years. For individuals, the question of what information a business holds about them, and what that business is doing with that information, is one of the core entitlements afforded by the data protection regime. The affected Core Participants indeed felt sufficiently strongly about this issue that they pressed the Inquiry itself to undertake a disclosure exercise in relation to the Motorman material. For reasons set out in a further ruling the Inquiry concluded that that
¶PART H | The Press and Data Protection
was not an appropriate focus of its own attention.60 But it clearly remains a live issue for at least some of the victims; and of course in referring to victims, only a very small proportion of those who were the subjects of material acquired by the press via Mr Whittamore, have had that fact confirmed to them to this day.
¶4.11 In the circumstances, the Inquiry considered it appropriate to seek the views of the current
Information Commissioner, Mr Graham, on the position of the Motorman victims from the perspective of the present day. The relevant Core Participants are also understood to have approached him with a general inquiry. In his oral evidence, Mr Graham responded in this way:61
"I had a letter last night, and no doubt this will be coming up later in the evidence, saying why have I not made contact with every individual whose name is mentioned in the Motorman file? And part of the answer to that is going to be I would have to take on a veritable army of extra people. I'm also going to say I don't think it's necessary, but this isn't practical. All regulators have to pick their battles, prioritise their resources, and I just need some evidence of there being a problem before I divert resources to do it."
¶4.12 Mr Graham was not here necessarily disputing that there was evidence of a problem at the
time of the discovery of the Motorman material, but was questioning whether there was still a problem today. That line in his thinking, and the question of the prioritisation of operational resources, are considered more fully below. But Mr Graham also suggested that there were two further practical problems.
¶4.13 In the first place, he reiterated Mr Thomas's anxiety about occasioning further invasions of privacy:62
"I think Richard Thomas put the point very well in his response to you on this matter, when he said: if, having established the identity of the individual and their address, we wrote to them to say simply, "Your details appear in the Motorman file, we can't tell you why", that might be an even greater breach of privacy than the original offence, because there would be a suggestion that there's no smoke without fire. Other members of the family might see the letter and say, "Hey, what's going on?" and I
¶H couldn't tell them any more than a name appears in a file."
The Inquiry is not persuaded that what is a perfectly fair concern about further invasions of privacy provides a reason for declining to contemplate alerting victims, nor that the risk of alerting third parties is one which could not, and cannot, reasonably be managed both through the means of communication and through the content.
¶4.14 Mr Graham advanced a second practical problem:63
1049"The difficulty about simply contacting everybody lies in the nature of the dossiers themselves. Mr Jay, you've seen them. I don't know whether all the core participants are in that position, but these are notebooks, and sometimes the information contained in them is deeply obscure. I said in my witness statement that the individual who made
¶Chapter 3 | Other Possible Regulatory Options
the notes must have had a perfect understanding of what he was intending, but it isn't always clear. That partly explains why there's sometimes a discrepancy between the spreadsheets that we've compiled and the notebooks. If you said to me, "You ought to notify everybody whose name appears in the Motorman files", I'd be hard pressed to do that. It isn't just a question of resources, it's it isn't immediately clear who is being referred to, because it isn't just celebrities, it's all sorts of people who may or may not be part of a story concerning a celebrity or whatever it is; it's just a name. Sometimes it's just a surname….It would be a phenomenal undertaking. Just because there's a name, John Smith, I would then have to work out which John Smith. The example I gave to the Select Committee was Ziggy Stardust, that's a bit easier to do, but there are an awful lot of very anonymous names and it simply isn't practical." That may be a convincing explanation for the impossibility of contacting everyone involved in the Motorman material. It is not a convincing explanation for not contacting anyone.
¶4.15 There can be no doubt that a serious piece of work would be required for the ICO to
undertake a wholesale review of the Motorman victims, and legitimate questions do arise about resources and priority. Mr Graham had his own suggestion about the way ahead:64
"So far as the individuals are concerned, I'm still very ready for subject access requests by those who may be concerned….if Hacked Off and their lawyers are representing particular individuals, then that's what we're here for; subject access requests, off we go." Subject access requests allow individuals to exercise their entitlement under the data protection regime to know from any business whether it holds information about them and, if so, what. They are not a straightforward answer to the problem. Unless individuals are already aware that a given title holds their information, the right could be exercised only by a speculative correspondence across a range of newspapers and periodicals, at some inconvenience and expense to both the person requesting and the subject of the request. This therefore appears to be a paradigm case in which a statutory regulator could be expected actively to consider providing assistance.
¶4.16 There is, no doubt, a range of practical solutions to this issue which both the ICO and the
industry could have offered to the Motorman victims at any point up to and including the present. One possible way forward would be for concerned individuals to be able to apply to H the ICO seeking to obtain confirmation (in so far as the ICO is able to offer it) as to whether they can be identified among the Motorman victims and, if so, information as to the title or titles concerned and assistance, if necessary, in making a suitable request to those titles.
¶4.17 If interest in exercising that right reached proportions beyond the capability of the ICO, then
1050perhaps the press organisations could be directed or encouraged each to undertake its own victim contact exercise under the ICO's supervision.65 So far as the ICO is concerned, at any rate, this suggests a course of action within its easily accessible knowledge and, subject to reasonable prioritisation, within its capability. This could have discharged its general functions to satisfactory effect. There is no evidence that it was willing to turn its mind to any such possibility, either at the time or since.
¶PART H | The Press and Data Protection
- Conclusions and the questions raised by Operation
¶Motorman
¶5.1 Operation Motorman was prima facie evidence of systemic and serious malpractice by the
press in relation to the acquisition and use of personal information. It was also one of the biggest cases of deliberate and systemic data abuse of any sort to come to the attention of the ICO. In the view of the ICO itself the journalistic practices it disclosed on the face of it:
(a) were widespread and systemic; (b) were probably criminal; (c) suggested extensive and continuing breaches of the data protection principles; (d) suggested large-scale and continuing breach of individual rights; (e) at the least raised serious questions about standards and proper practices by the press; (f) were unlikely to be an isolated example; and (g) had implications for the integrity of personal information, a number of public and private databases, and the data protection regime as a whole. Additionally, it was apparent to the ICO that the industry was not (at any rate at the time) denying that there was a problem.66
¶5.2 This called for a commensurate response from the ICO which dealt with all aspects of the
problem and included challenging the practices and safeguarding both the information and the position of the victims involved. It also presented a clear opportunity for a regulatory body to demonstrate publicly the importance and effectiveness of the data protection regime in safeguarding the public interest in information privacy. The ICO was the best-placed organisation to grasp the implications of the Motorman material as a whole and to take a decisive lead, working with other public authorities including the police and with the industry itself, to ensure that a comprehensive and effective response was made to the evidence that it disclosed of problems in the culture, practices and ethics of the press.
¶5.3 From an operational point of view, the ICO's response to the Motorman material was not H commensurate with the scale of the problem disclosed. The Information Commissioner
ultimately considered that the problem was big enough for it to trouble Parliament and Government at the highest levels, including the Prime Minister. The contrast with the insufficiency of its operational response is all the more obvious. The ICO is principally an operational regulator, endowed with legal powers and functions to be exercised in the public interest. Its principal role is not to act as a political campaigning body but to discharge its regulatory functions at a practical level.
¶5.4 In particular, from an operational perspective, it appears that:
1051(a) there was an insufficiently strategic grasp of the operational issues and options facing the organisation as a result of the material for fully informed decisions to be taken, or for the results to be followed through; (b) the senior management of the ICO in practice gave insufficient priority to the operational dimension of the Motorman material;
¶Chapter 3 | Other Possible Regulatory Options
(c) the course of conduct of the criminal investigations was unsatisfactorily managed, with the result that opportunities were missed to address potential criminality in the culture, practices and ethics of the press; (d) insufficient consideration was given to alternative operational strategies, both formal and informal, for addressing the matter; (e) in particular, the failure to give serious contemplation to engaging directly with either the data controllers in the press or the data subject victims is difficult to reconcile with the general duties of the ICO or with a recognisably considered approach to weighing up its operational priorities.
¶5.5 It also appears that there was insufficient connection between the operational work of the
ICO on the Motorman case and the strategic or political choices made by the Information Commissioner to respond to the issue at a higher level, that is to say, by engaging in dialogue with the PCC and campaigning on s55. As a result, those choices were insufficiently well- informed and effective, and not appropriately targeted at the issues about the culture, practices and ethics of the press disclosed by the Motorman material.
¶5.6 In particular, while it was not unreasonable to think it worth exploring the contribution the
PCC could make to addressing the problem presented by the Motorman material, the strategy lacked from the outset:
(a) clearly-defined objectives and outcomes; putting a stop to the practice, condemnation and Code changes were propositions at too high a level of generality to be capable of generating a timetable or plan of action measurable in terms of identifiable changes in the culture, practices and ethics of the press; (b) a clear, informed and realistic apprehension of the nature, role and functions of the PCC and the contribution it might be expected to make (which is a point that Mr Thomas accepted); it was not satisfactory for the ICO to seek to discharge its own functions to any extent through an organisation such as the PCC without being very clear about its ability to take on and deliver that charge satisfactorily, and there is insufficient evidence that this was properly researched; (c) a detailed plan for how the ICO's own functions would have to be brought to bear to H ensure that the two organisations' contributions would work together to produce the desired regulatory outcome; (d) a thought-through analysis of how the strategy of trying to engage the PCC on the one hand, and the political campaign on s55 on the other were likely to interact, particularly given the personalities involved, and plans for dealing with the potential (which might be thought obvious) for the objectives of each to conflict.
¶5.7 These problems were compounded by persistence in the dialogue with the PCC in a way
1052which failed to be sufficiently focused and realistic, proportionate to its likely effect and effectiveness, failed to keep in view the ICO's own role and responsibilities. In particular, as it became apparent that the response of the PCC was falling short of what ICO hoped, opportunities were missed to reappraise the strategy which could have been replaced or supplemented by the direct exercise of its own powers and functions, including by way of issuing good practice guidance or otherwise engaging directly with the industry.
¶PART H | The Press and Data Protection
¶5.8 Both Mr Thomas and, latterly, Mr Graham are to be commended for the extent to which they
have robustly sought, in the face of sustained hostility and lobbying from the press, to make the case publicly for better standards and to encourage rational consideration of the merits of the argument for increasing the sentencing maxima for s55 offences. To the extent that the s55 campaign can be regarded as a response to the Motorman case (and I recognise that it had other motivations also), it is arguable that it was problematic in:
(a) the extent to which it drew the ICO into the contested political arena and away from its primary regulatory obligations under the DPA; (b) the extent to which it focused exclusively on the criminal law as a potential solution, and its lack of practical engagement with the limitations on the effectiveness of such solutions; and (c) not identifying the context, either within the wider role and functions of the ICO or in any plan for realising any benefits that it might have been capable of yielding.
¶5.9 In the light of the analysis of the response to the Motorman material, it is appropriate to
conclude that ICO did not effectively grasp the full implications, and indeed opportunities, of the case. As a result:
(a) previous misconduct was inadequately brought to justice and was not otherwise addressed as a matter of law enforcement; (b) the risk of continuing breaches of law and standards was not effectively addressed; (c) the interests of the victims were inadequately protected; and (d) an important opportunity was missed to address problems in the culture, practices and ethics of the press in relation to the acquisition and use of personal information, which could have had an impact beyond the facts of the Motorman case.
In the circumstances, a real question must remain as to whether these missed opportunities contributed, either at a general or a specific level, to later manifestations of disregard for the rights of others in relation to information privacy which were subsequently exhibited by certain parts of the press, of which phone hacking was the most serious.
¶H
¶5.10 I should make very clear that there is no evidence to suggest, as Mr Owens invited the Inquiry
to do, that the political campaign and the publication of the What Price Privacy? reports were a deliberate attempt to deflect attention from the ICO's operational inactivity. To the extent that they drew public and political attention to the problem, they did themselves perform a function of acting as a warning to others in positions of authority to take action. To that extent, Mr Graham's description of the role of the ICO in the Motorman story ("we are the good guys") may fairly be endorsed.
¶5.11 The principal outstanding questions, therefore, to which the remainder of this Part of the
¶Report is addressed, are these:
1053(a) Is there any reason to think that there are still causes for concern about the culture, practices and ethics of the press in relation to personal information, whether as a matter of law or as a matter of good practice? (b) To what extent do issues persist about the perception of the ICO that its role and powers are inadequate or inappropriate to address evidence of any such problems?
¶Chapter 3 | Other Possible Regulatory Options
¶(c) To what extent, on an objective analysis, are there genuine shortcomings in the legal framework, and are there any changes which could be made to improve the situation? (d) Are there any other impediments to the ICO making a more effective contribution
to supporting law enforcement and good practice in relation to the press which it is necessary or desirable to remove?
¶H
1054Chapter 4 The ICO and the Press today
- Introduction
¶1.1 The current Information Commissioner, Christopher Graham, took over from Mr Thomas in
the summer of 2009. In the context of this Inquiry, it is of interest that his previous career was in journalism, broadcasting and regulation (he was a former Director General of the Advertising Standards Authority), rather than in law.
¶1.2 He told the Inquiry that the culture, practices and ethics of the press were not drawn to his
attention on handover as an issue of top priority. He was, however, aware that commencement of the legislative changes to s55 was outstanding and he made a connection between legislative change and press conduct saying that there was:1
"a sword of Damocles hanging over the press. If there was any repetition of the behaviour that Operation Motorman had uncovered that would be accessed pretty quickly."
¶1.3 In the event, he had what he described as a 'wake up call' a few weeks after taking up his
appointment when the story by Nick Davies about phone hacking was published in the Guardian. His principal focus thereafter was not, however, operational but political: he had to prepare for his appearance on 2 September 2009 before the Culture Media and Sport Select Committee2 which was then taking evidence specifically as a result of the emergence of the Goodman/Mulcaire case and the coverage in the Guardian, but linking it also with the history of Operation Motorman. This was therefore an opportunity for Mr Graham to take stock of the history of Motorman, the role of the ICO, and the signs from the emerging hacking scandal that the story of press abuse of personal information was taking a new direction.
¶1.4 His evidence to the Select Committee was that:
¶(a) phone hacking was a matter for the police and the ICO had 'no involvement whatsoever'; H (b) any operational steps the ICO could have taken in relation to Motorman (including
criminal investigations into journalists) would have been too difficult practically and legally and were not a priority call on resources at the time; (c) the priority of the ICO in relation to Motorman was to 'sound the alarm, to warn the industry, to talk to the PCC, to urge the provision of a custodial penalty' and the latter remained the priority; (d) there was little more that could now be done in relation to the Motorman material without more, not least because it was old and not straightforward to interpret; and (e) he had no intention at this point of proactively reviewing the Motorman evidence, because it would serve little purpose and the ICO had many other priorities.
¶1.5 The question of priorities was a matter of some concern to the Committee at the time. Mr
¶Graham was pressed particularly hard on the position of the victims, some of whom were p4, line 19-22, Christopher Graham, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of-Morning-Hearing-26-January-2012.pdf http://www.publications.parliament.uk/pa/cm200910/cmselect/cmcumeds/362/9090205.htm
1055¶Chapter 4 | The ICO and the Press today
expressing anger at not having been notified by the ICO of their appearance in the Motorman material. Mr Graham indicated that he would treat approaches from individuals inquiring about their possible appearance in the Motorman material on a case by case basis. He was also pressed on whether the ICO had worked with the organisations, both public and private sector, whose information had been wrongly disclosed in the Motorman case; a certain amount of work had been done but various factors had limited the extent of the engagement. These included the increasing general insecurity of information of all sorts, the flourishing illegal trade in information procurement, and the risk that any investigation would itself present a risk of the further dissemination of the personal information in question
¶1.6 It is not necessary to consider Mr Graham's evidence to the Select Committee in detail,
because the same ground was explored in the course of his evidence to the Inquiry. His general update to the Committee on the work of the ICO work with the press at that time is, however, interesting. He said:3
"We started off by a general call to the industry which, indeed, was heeded to some extent in that the Editors' Code Committee eventually amended clause 10 of the Code, made it much tougher, and we have done a lot of work with the PCC in training editors. We have done a couple of seminars, one in London and one in Scotland, to make sure that journalists understand that this is serious. I saw a copy of the Editors' Code Handbook the other day and it makes it very clear that you mix with the Data Protection Act at your peril and you had better have a very solid public interest story very well documented, in order to do that. Chairman, the interesting question is why did not any of those titles that were listed in What Price Privacy Now? contact the Information Commissioner's Office and say, "This is terrible,45 p11, Professor Baroness O'Neill, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Witness- Statement-of-Professor-Baroness-ONeil.pdf HC Hansard 27 January 1981, Volume 997, Column 806 onwards, ibid ibid p24, para 61, ibid O'Malley, T and C Soley, Op Cit, p82 Shannon, R. (2001) Op. Cit., p38 p5, paras 1.10-1.11, ibid pp74-75 lines 15-2, Lord Macdonald, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-of- Morning-Hearing-4-April-2012.pdf http://www.newsint.co.uk/compensationscheme/index.html p58, line 21, William Lewis, ibid Part F, Chapter 6 p70, lines 15-21, Paul McMullan, ibid Exhibit PWH3 to the witness statement of Peter Hill (which included circulation figures for the Daily Express between pp52-53, lines 25-16, Garry Flitcroft, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript- of-Morning-Hearing-22-November-20111.pdf; pp3-4, para 20-22, http://www.levesoninquiry.org.uk/wp-content/ uploads/2011/11/Witness-Statement-of-Garry-Flitcroft.pdf pp32-33, lines 15-14, Paul Silva, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of- Morning-Hearing-11-January-2012.pdf; p73, lines 9-20, Peter Wright, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/01/Transcript-of-Morning-Hearing-11-January-2012.pdf; p9, para 38, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-John-Twomey. pdf p15, para 43, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Lord-Stevens. pdf p43, lines 19-23, Francis Aldhouse, ibid p72, lines 2-11, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of- Afternoon-Hearing-9-December-2011.pdf Part I, Chapter 5 p93, lines 1-3, Philip Webster, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-of- Morning-Hearing-25-June-20121.pdf p4, line 18, Tony Blair, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-Morning- Hearing-28-May-2012.pdf; he later referred to the "few people" of the press having "substantial power", p56, line 24, ibid p62, lines 15-22, George Osborne, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-of- Afternoon-Hearing-11-June-2012.pdf pp9-10, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-of-Morning- Hearing-25-April-2012.pdf p3, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Exhibit-KRM-18.pdf pp69-70, lines 11-23, George Osborne, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript- of-Afternoon-Hearing-11-June-2012.pdf pp61-62, lines 22-21, Sir John Major, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-of- Morning-Hearing-12-June-2012.pdf p7, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Coordinating-Committee-for- Media-Reform.pdf pp12-13, paras 3.2-3.3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Closing-submussion-from- MPS.pdf Para 134, http://www.publications.parliament.uk/pa/jt201012/jtselect/jtprivinj/273/273.pdf p47, line 17, p48, line 14, Lord Grade, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript- of-Afternoon-Hearing-31-January-2012.pdf p34, para 63, ibid p106, lines 11-15, Lord Black, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Transcript-of- Morning-Hearing-9-July-2012.pdf pp4-6, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Submission-by-The-Campaign-for-Press- and-Broadcasting-Freedom.pdf p79, lines 15-21, ibid. p80, lines 3-13, ibid p21, para 28, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Lord-Black-of- Brentwood1.pdf Part K, Chapter 7, para 4.35 Douglas v Hello! Ltd [2001] QB 967 at para 150, per Keene LJ in the CA, approved in A v B (a company) [2002] EWCA Civ 337 at para 11(iii), per Lord Woolf LCJ of our journalists apparently have been doing this thing which we utterly condemn, tell us who they are", and we then might have been able to talk turkey. Interestingly, of 305 journalists, and we listed the total in the document, we have not had a single inquiry from a journalist saying, "Am I on that list? Was I doing something wrong?"
¶1.7 The Inquiry has also had to consider the question of the lack of press interest in pursuing
the Motorman evidence but it is also important to look at the position from the perspective of the ICO. Its own stocktake, at the end of 2009, was that it was aware that Mr Thomas' political campaign had at best been only partially successful, and had also established a hostile response from the press. It knew that neither the ICO itself, nor evidently the press, H had followed up the Motorman evidence operationally, either in relation to the particulars of the state and use of the information itself, the conduct of individual journalists, or its own practices. Finally, it was on notice of the emergence of the phone hacking scandal.
¶1.8 Notwithstanding this assessment, the ICO had concluded that there was no imperative for it
to engage further with the culture, practices and ethics of the press. In particular, Mr Graham expressed the view to the Select Committee in relation to the PCC that "We do not have any formal relationship with them, but I just accept that they do press standards and we do data protection and, where those two things cross over, then we probably need to talk."
¶1.9 The two things clearly do cross over. In concluding this Part of the Report, assessing the
1056current state of the role and functions of the ICO, and making recommendations for the future, the focus returns to the key themes of the Motorman case, but viewed now from the contemporary perspective. Those themes are:3 Visits 9 Chapter 2: the approach 10 Challenging the evidence 31 The nature and standard of proof 43 Chapter 4: the Report 49 Timing and content 50 PARt B: the PRess And the PuBlIC InteRest 53 Chapter 1: Introduction 55 Chapter 2: the freedom of the press and democracy 56 The importance of a free press: free communication 61 Personal autonomy and civil liberties 73 Prime Minister Blair: 1997-2007 1143 Prime Minister Cameron: 2010-present 1209 Human Rights Act 1998 1262 In particular, in relation to the knowledge and understanding (a) in 2002 of Surrey Police as to the interception of the mobile phone of Milly Dowler and (b) in 2008 of Cleveland Police in relation to e mail hacking of John Darwin who had faked his own death in a canoe 'The Freedom of the Press'-proposed preface to 'Animal Farm', publication of which was delayed until the end of the war to avoid causing offence to the Soviet Union pp361-363, ibid p3, ibid ibid http://www.newscorp.com/investor.html http://stakeholders.ofcom.org.uk/binaries/research/cmr/cmr11/UK_Doc_Section_1.pdf Communications Act 2003 s375 (1)(2C)(a) http://www.legislation.gov.uk/ukpga/2003/21/section/375 ibid, p4 p16, lines 12-18, Alexander Owens, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-of- Afternoon-Hearing-30-November-2011.pdf p42, para 83, ibid pp2-3, para 5, ibid para 46, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Application-of-Rule-13-of-the-Inquiry- Rules-2006.pdf Transcript of the proceedings before Gross J on 26 January 2007, p70E This submission has not been published on the Inquiry website, but was shared with the Core Participants to the Inquiry pp4-5, lines 17-12, Charlotte Church, ibid p34, lines 16-25, James Hipwell, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of- Morning-Hearing-21-December-20111.pdf p4, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Commissioner-Bernard- Hogan-Howe1.pdf pp12-13, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Jeff-Edwards.pdf p15, para 3.1.3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Report-by-Elizabeth-Filkin.pdf pp4-5, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-Alexander-Owens1. pdf pp32-33, lines 4-22, Alexander Owens, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript- of-Morning-Hearing-5-December-2011.pdf p26, para 6.10, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Christopher- Graham.pdf http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Fourth-Witness-Statement-of-Richard-Thomas-CBE. pdf; http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Sixth-Witness-Statement-of-Richard-Thomas.pdf Part H, Chapter 5, para 2.62 p6, lines 15-16, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-of- Morning-Hearing-25-April-2012.pdf p22, lines 7-14, Jack Straw, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-Morning- Hearing-16-May-2012.pdf p4, lines 6-12, David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-of- Morning-Hearing-14-June-2012.pdf p6, ibid http://www.publications.parliament.uk/pa/cm201011/cmhansrd/cm110713/debtext/110713-0003. htm#11071379000002 p9, lines 20-25, ibid pp1-2, para 4, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/10/Submission-from-Professor-Steven- Barnett-on-plurality.pdf p9, line 8, Ian Hislop, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of-Morning- Hearing-18-January-2012.pdf p4, para 18, and p18, para 85, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement- of-Nick-Clegg-MP2.pdf; pp10-11, lines 15-24, Nick Clegg MP, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/06/Transcript-of-Morning-Hearing-13-June-2012.pdf p14, para 42, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Lord-Hunt-of-Wirral. pdf p36, lines 9-20, Lord Black, ibid p3, para 7, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Lord-Black-of-Brentwood1.pdf p15, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Submission-by-Campaign-for-Press-and- Broadcasting-Freedom1.pdf p51, lines 11-15, Professor John Horgan, ibid K Part F, Chapter 6 Part K, Chapter 7, para 4.28 K Part K, Chapter 7, para 4.8 In McCartan Turkington Breen v Times Newspapers Ltd [2001] 1 AC 277, Lord Steyn noted that even before the coming into force of the HRA 1988, "the principle of freedom of expression [had] attained the status of a constitutional right with high attendant normative force", with reference made to Reynolds v Times Newspapers Ltd [2001] 2 AC 127 at 207G-H Q1807, Christopher Graham, http://www.publications.parliament.uk/pa/cm200910/cmselect/ cmcumeds/362/9090206.htm
¶PART H | The Press and Data Protection
(a) the extent to which there are problematic issues today which fall within the purview of the Information Commissioner and concern the culture, practices and ethics of the press in relation to personal information; (b) the powers available to the ICO to tackle any such problematic issues, and whether they are sufficient to the task; and (c) the governance, capability and priorities of the ICO and whether they too are sufficient and appropriate to the task.
- Personal information privacy and press practices
¶2.1 Mr Graham's evidence to the Inquiry was that he did not believe that the press was
significantly involved in breaches of the Data Protection Act since the publication of the What Price Privacy? reports, and that therefore, by implication, they had learned the lessons of those reports. This evidence is at the heart of the Inquiry's terms of reference, and, given the way in which the phone hacking scandal developed, is not entirely obvious. It thus requires close analysis.
¶2.2 Mr Graham put the matter in this way:4
"I can only speak of what's in my own knowledge, and I can only speak of those aspects of press conduct that fall within the responsibilities of my office, and that's primarily Section 55. I know that the Inquiry was triggered by concerns about hacking of phones and hacking of emails, these are criminal offences that don't come under the Information Commissioner's office, but Section 55 certainly does. I can't prove a negative. All I can say is I've seen no further evidence beyond what we published in 2006, and that of course was about behaviour before when Mr Whittamore's office was raided, and much of it related to activity between 1999 and 2003. I simply offer a view that this is an issue of such high salience, many investigative journalists working in the area, great rivalry between newspaper groups, lots of campaigners, that if there was evidence of further breaches of Section 55 by the press, it would have been drawn to my attention, and it hasn't been."
¶2.3 The latter point was one on which he expanded:5 H
"…there's been so much feverish activity over the past two years in relation to this with the various newspaper groups, with the journalists, with the books written on the subject, with the campaigning groups. If the best that critics can do is to turn up further evidence of what was going on between 1999 and 2003, it doesn't amount to much."
¶2.4 The questions raised by this evidence were many, and included:
(a) why s55 (the criminal offence of unlawfully obtaining information) was being used as the benchmark for contravention of the regime rather than the wider scheme of principles and rights created by the regime; (b) why Mr Graham would have expected investigative journalists or other campaigners to have been likely to excavate issues about the press and personal information which the ICO, charged with legal responsibilities in that respect, was not itself minded to pursue;
¶pp6-7, lines 10-3, Christopher Graham, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcriptof-Morning-Hearing-26-January-2012.pdf p27, lines 6-12, Christopher Graham, ibid
1057¶Chapter 4 | The ICO and the Press today
(c) why the ICO did not appear to consider that the phone hacking scandal itself and the wider issues of the culture, practices and ethics of the press before the Inquiry were a cause of acute concern within its own sphere; (d) why the ICO was able to conclude that the Motorman evidence was of no continuing interest or relevance in relation to the data protection regime; and (e) if the ICO was unaware of any problems in relation to the press, to what extent that was a reasonable conclusion based on due diligence.
¶2.5 The due diligence point had particularly exercised Tom Watson MP in putting the following questions to Mr Graham (and his ICO colleague Mr Clancy) on behalf of the Select Committee:6
"Q. What I am trying to do is ascertain responsibility in the system for getting this right. … Are you convinced that these practices have now ended in newsrooms up and down the country?" A: "I am not in a position to know." Q. "What I am trying to understand is that the decision you took, which, by the way, I think was the right decision, to blow this open, bring it into the public domain and try and effect massive change in the way journalists run about their work, I can understand why in a resource-sensitive area that is what you did, but what I cannot understand is why you have not gone back to see whether that has been successful or not or what gauge of success there is." A: "How can we measure it? Do we go to editors and say, 'Have you come across any examples of journalists that have stepped over the line?'" Q. "Is there anyone in this country who would know whether these practices are still going on other than editors and journalists in the newsrooms?" A: "Well, editors and journalists must know; it is a self-regulatory system." Q. "So, when they tell us that they think that they have thoroughly investigated the matter and they have put it right, do you think they could possibly have done that if they do not know the list of journalists that you have got on your files?" A: "I think there might be information which would identify some of those journalists because some of the invoices quite clearly indicate that there have been blags in relation to particular stories and invoice numbers. Surely, their records should be able to cross-reference that to a particular journalist, and sometimes the invoices cross-reference the stories, so editors could examine their business and perhaps identify which journalists were or were not." H " Q: " I think you could perhaps be a little proactive just to ensure that they have certainly done that or that they certainly have the information about the people who were at it?" A: "I understand what the Committee is saying, but you are not dealing with a regulator who is not proactive; we are proactive on a very wide front. … There are lots of ways we could spend our time."
¶2.6 The due diligence point itself resolved itself into a number of sub-issues relating to the
1058question of specific follow-up to Motorman; the strategic follow-up to Mr Thomas's political campaign, the response to the phone hacking scandal, and the position of the ICO in relation to the press today. These will be discussed in turn.6 Engagement with the public: the website 37 Chapter 3: Further issues of law 38 The protection of sources and other legal privileges of the press 68 Chapter 3: Competing public interests 69 http://www.levesoninquiry.org.uk/people/assessors/lord-david-currie/ This obligation of confidence is owed by the Inquiry team to any recipient of the letter and by that recipient to me, as Chairman of the Inquiry: see para. 14(1) of the Inquiry Rules 2006 Great Britain, Royal Commission on the Press: 1961-1962: Report (Cmnd 1811) p1, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Witness-Statement-of-Dr-Rowan-Cruft.pdf p32, lines 16-21, Professor John Tasioulas, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/ Transcript-of-Morning-Hearing-16-July-2012.pdf Claire Enders, Competitive Pressures on the Press, Seminar 6 October 2011, http://www.levesoninquiry.org.uk/wp- content/uploads/2012/07/Claire-Enders-Competitive-pressures-on-the-press.pdf ibid http://downloads.bbc.co.uk/bbctrust/assets/files/pdf/about/how_we_govern/charter.pdf p3, lines 4-10, Robin Foster http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Transcript-of- Afternoon-Hearing-17-July-2012.pdf Political and Economic Planning, Report on the British Press http://www.pcc.org.uk/index.html p9, para 8, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-T-ACC-Russell- Middleton.pdf Information Commissioner's Office, What Price Privacy?, p15, para 5.1 p33, para 89, ibid p2, para 6, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Fourth-Witness-Statement-of-DAC-Sue- Akers.pdf http://www.levesoninquiry.org.uk/hearing/2011-11-14am/ http://www.levesoninquiry.org.uk/hearing/2011-11- p53, lines 23-24, Michael Gove, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of- Afternoon-Hearing-29-May-2012.pdf p28, lines 22-25, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-of- Morning-Hearing-25-April-2012.pdf p3, para 10, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-Sally-Bob- Dowler.pdf pp14-17, lines 17-3, Charlotte Church http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-of- Afternoon-Hearing-28-November-20111.pdf p5, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-Michelle-Stanistreet.pdf http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Report-by-Elizabeth-Filkin.pdf pp4-5, paras 11-13, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Lord- Condon.pdf p35, lines 10-12, Brian Paddick, ibid pp25-26, lines 12-11, Neil Wallis, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-of- Afternoon-Hearing-2-April-2012.pdf p75, line 13, Richard Thomas, ibid, emphasis added. Mr Thomas suggested, however, that s55 of the DPA which founded the prosecution powers was most likely to be the most relevant provision of the regime to the terms of reference: p3, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/First-Witness-Statement-of-Richard- Thomas-CBE.pdf pp41-42, lines 25-3, Francis Aldhouse, ibid pp11-12, paras 4.18-4.19, Alexander Owens, ibid pp6-16, para 3.3-3.26, ibid p2, para 7, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Second-Witness-Statement-of-John- Witherow.pdf Part H, Chapter 5, para 2.64 p36, lines 4-24, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-of- Morning-Hearing-25-April-2012.pdf p53, lines 18-19, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-of- Morning-Hearing-25-April-2012.pdf pp4-5, lines 16-2, David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-of- Morning-Hearing-14-June-2012.pdf pp7-8, ibid pp58-59, Lord Justice Leveson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of- Morning-Hearing-10-May-2012.pdf; p5, lines 5-11, Lord Justice Leveson, http://www.levesoninquiry.org.uk/wp- content/uploads/2012/05/Transcript-of-Afternoon-Hearing-15-May-2012.pdf pp87-88, lines 6-2, ibid p52, lines 14-21, ibid pp3-4, lines 19-3, Robin Foster, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Transcript-of- Afternoon-Hearing-17-July-2012.pdf Home Office Large Major Enquiry System p46, lines 20-21, Lionel Barber, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of- J Morning-Hearing-10-January-2012.pdf pp8-9, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Professor-Roy-Greenslade-of- City-University.pdf p14, lines 13-14, Lord Black, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-of-Morning- Hearing-1-February-2012.pdf p10, lines 10-22, Lord Black, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Transcript-of-Morning- K Hearing-9-July-2012.pdf p3, para 6, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Media-Regulation- Round-Table.pdf p53, lines 9-22, Professor John Horgan, ibid Part K, Chapter 2 Part K, Chapter 3, para 5.14 Part K, Chapter 7, para 4.16 See for example: Application 22954/93, Ahmed v United Kingdom (1998) 29 EHRR1 at para 70, and Application 11800/85, Ezelin v France (1991) 14 EHRR 362 at paras 37 and 51 Q1844-Q1851, Christopher Graham, http://www.publications.parliament.uk/pa/cm200910/cmselect/ cmcumeds/362/9090208.htm
¶PART H | The Press and Data Protection