The topsy–turvy world of newspaper regulation and government spies

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Press Freedom, Leveson, GCHQ and the Mad Hatter’s Tea Party

This piece was originally published at the New Statesman on 25 November 2013

At the Mad Hatter’s tea party in Alice and Wonderland the March Hare upbraids Alice for claiming she can solve a riddle:

“Do you mean that you think you can find out the answer to it?” said the March Hare. “Exactly so,”  said Alice.

“Then you should say what you mean,” the March Hare went on.

“I do,” Alice hastily replied; “at least – at least I mean what I say – that’s the same thing, you know.”

“Not the same thing a bit!’ said the Hatter. “You might just as well say that “I see what I eat” is the same thing as “I eat what I see”!”

“You might just as well say,” added the March Hare, “that “I like what I get” is the same thing as “I get what I like”!”

“You might just as well say,” added the Dormouse, who seemed to be talking in his sleep, “that “I breathe when I sleep” is the same thing as “I sleep when I breathe”!”

In Britain today, you might just as well say ‘The press is free’ as ‘Free the press’, or ‘the end of press freedom’ as ‘freedom to end the press’ or ‘state controlled press’ as ‘press controlled state’. So back-to-front, upside down, and misshapen has the debate about press freedom become.

On the one hand we have had a chorus of newspapers thundering about how the press Royal Charter on self-regulation of the press agreed on 30th October represents the end of 300 years of press freedom, and would allow politicians control of the British press.

On the other hand we have had many of the same newspapers accusing one of their own — the Guardian — of ‘treason’ and helping terrorists, for revealing the extent of secret surveillance by the British and US governments.

Both in principle and practice these newspapers have got the debate the wrong way round. They claim the Royal Charter represents an end to press freedom without providing evidence to support such a claim. At the same time they fail to see any danger to press freedom from the types of threats made by the government against the Guardian. Continue to mix the debate up and we will end up with a press cowed and politically compromised. But see the Royal Charter and Snowden affair for what they are and Britain could become a freer and fairer country.

The press Royal Charter has earned hundreds of column inches in the UK press in the past month. Countless leaders and news reports have intoned about the dangers for press freedom from political interference. ‘A press free from political ­interference is a precious inheritance’, The Times’ leader of 31st October read. The Royal Charter ‘grants politicians the right to meddle in press regulation for the first time since the licensing of newspapers was abolished in 1695’, claimed the Daily Mail. Whilst The Telegraph said that ‘The question of how our press is regulated is a question of how best to defend free speech. It is about ensuring that responsible newspapers have the freedom to publish what they wish and that the public have the freedom to read what we publish. That is why we cannot accept the current proposals for regulation by statute’.

We should take these claims seriously because, if true, they would justify the boycott of the system by many news groups, and undermine separate claims – made by Leveson, politicians, the group representing victims of press abuse, and others — that the Charter will protect press freedom and even enhance it.

So, does the Charter grant ‘politicians the right to meddle in Press regulation’, and does it in any way threaten newspapers freedom to publish what they wish, or the public’s freedom to read what they publish?

The first thing to make clear is that the Charter does not establish a regulator. It establishes a body whose sole task will be to check the independence and effectiveness of regulators set up by news organisations themselves, administering their own code of conduct. The body will base its assessment on a series of basic standards, written by Lord Justice Leveson, and copied into a schedule in the Charter. Those newspapers who have claimed the criteria were drawn up by politicians should compare Leveson’s wording with the wording of the Royal Charter. It is hard to fit a cigarette paper between them.

Politicians are explicitly excluded from the body established by Royal Charter. Further, they are excluded from the staff of that body, and from the Appointments Panel that appoints that body. Any regulator that wants to be recognised by this body is also explicitly banned from having any politicians on its Board. It is hard, therefore, to see how this corresponds to the Daily Mail’s claim that the Charter ‘grants politicians the right to meddle in press regulation’.

Royal Charters are, however, instruments of royal prerogative. As such, with most Royal Charters it is possible for privy councillors (of whom there are hundreds, including serving government ministers) to meddle. It was for this reason that an amendment was passed in the Enterprise and Regulatory Reform Act (2013) that prevents — by law — any interference in this Royal Charter by privy councillors. Again, it is hard to see how this corresponds to the Daily Mail’s claim.

What about The Telegraph’s view that the Charter jeopardises newspapers freedom to publish what they wish? No evidence is given to support this assertion, and it is hard to see what it could be based on. The Charter states that no regulator should ‘have the power to prevent publication of any material, by anyone, at any time’. Any regulator established should only have the power to offer redress to members of the public after publication. This contradicts The Telegraph’s assertion.

But what about future amendment of the Charter? This argument, which is perhaps the one made most frequently, is that the Charter provides a device that future politicians can change such that they can exert control over the press. The argument has been made more broadly than just by The Daily Mail and The Daily Telegraph.

According to these articles, this is how it might work. A future parliament, angry at the press for revealing something like MPs’ expenses, changes the Royal Charter in a way that constrains press freedom to do something similar in the future. For example, a future parliament alters the so-called ‘recognition criteria’ in the Royal Charter to include a clause preventing examination of MPs’ financial affairs.

This scenario might sound reasonable and credible. As such, it will cause sensible people who care about press freedom to worry. Except that, when examined, it becomes clear that it is neither reasonable nor credible.

This is how such a scenario would actually play out under the Charter system. If MPs were angry at the press they would first have to agree on what to do about it. Having agreed that a change in the Royal Charter was the best approach (highly unlikely, as you will see later) they would then need to convince two thirds of their number. Having convinced two thirds of their number, they would then have to convince two thirds of the House of Lords. They would then have to gain the unanimous agreement of the independent Board of the Recognition body (none of whom can be politicians). They would have to do this against a backdrop of public debate about the changes and, no doubt, many concerned voices published in the pages of national papers and elsewhere.

But let us, for the sake of argument, accept that the proposed change to the Charter passes these hurdles and the Charter is changed. What does this then mean? It means that, at the next three-year cyclical review (or at an emergency review – if the independent recognition body can make the case that one is necessary), a regulator or regulators – taking into account the change to the Charter – will have to decide whether to put themselves forward for recognition under the amended Charter criteria.

Given that the board of any regulator will include those working in the press, those with experience of the press, and independent members, it is unthinkable that they would put themselves forward if they thought the changes represented a serious infringement of their freedom to publish in the public interest. Why would they?

Assuming, therefore, that the regulator — or regulators — did not apply for recognition, then there would be no recognised regulator. The court costs incentives for participation, and penalties for non-participation, in a regulatory system would therefore disappear (since these only apply when there is a recognised regulator).

This is the failsafe that has been ignored by those in the press that rail against the Charter. It is not simply for the publishers to choose whether they join, or do not join, a regulator. It is also for the regulator to decide whether to put itself forward for recognition (as the industry’s Independent Press Standards Organisation has said it will not do). If they believe the Charter has been made too restrictive, then they can choose not to participate.

The regulator, or regulators, could then continue to do its job, without the court cost penalties or incentives of the Leveson system (in other words, essentially what we have right now). The change to the Charter, which would have needed to pass numerous democratic hurdles, and would have been years in the making, would turn out to be counter-productive, and would have no impact on the press’ ability to publish anything, at any time, to anyone. There would be no end to press freedom, no government control, no political interference.

Contrast this with an alternative scenario. Imagine that MPs are angry at the press for revealing MPs expenses and are determined to prevent it happening in the future. By a simple majority they introduce a change to the Freedom of Information Act to exclude the personal financial affairs of MPs. Or they could amend the Data Protection Act to protect the privacy of MPs’ spending. Each change only requires a majority vote in the House of Commons. The change comes into force within months and suddenly MPs can rest easy that their future purchases of bath plugs and film channel subscriptions will remain hidden from public view.

This is a real threat. This is something that could happen now. MPs can, and do, use and amend existing legislation in a way that genuinely threatens press freedom. Equally, they can turn to their existing powers and legislation already available — though not meant for journalism — to constrain and attack journalism.

In July, a senior editor and a computer expert at the Guardian destroyed a number of computers with angle grinders. The computers contained files leaked by Edward Snowden on the activities of GCHQ and the NSA. The destruction was directed by the UK intelligence service and was overseen by technicians from GCHQ.

In August, David Miranda was stopped while in transit through Heathrow airport. He was held under Schedule 7 of the Terrorism Act (2000). He was interrogated for nine hours and various personal items taken from him and not returned. Subsequently the authorities said he had been stopped based on the belief that he was engaged in espionage and was promoting a “political or ideological cause”. Miranda was promoting no such cause, unless the authorities define ‘journalism’ as a cause.

In October, the Prime Minister David Cameron stood up in the House of Commons and said that the Snowden files were ‘dangerous’ for Britain: “The plain fact is that what has happened has damaged national security”. He encouraged parliamentary committees to investigate the Guardian’s actions. In a subsequent debate he went further and threatened the Guardian with pre-publication censorship:

“I don’t want to have to use injunctions or D notices or the other tougher measures. I think it’s much better to appeal to newspapers’ sense of social responsibility. But if they don’t demonstrate some social responsibility it would be very difficult for government to stand back and not to act”.

Some MPs went further still. Julian Smith MP wrote to the head of the Metropolitan Police asking him to investigate the Guardian and calling on the police to compel the Guardian to cooperate.

This is what it looks like when a government attacks press freedom. Smashing computers in news organisations. Using existing terrorist laws not meant for journalism. Threatening pre-publication censorship and prosecution.

In the US The Washington Post also has access to some of Snowden’s documents. It has published a series of stories based on those documents. It has written opinion pieces about the NSA and Snowden, including one calling Snowden a patriot. Has the US government attacked The Washington Post? No it has not. Has it sent intelligence officials to destroy its hardware? It has not. Obama has even acknowledged the benefits of the debate triggered by Snowden’s leaks. ‘There’s no doubt that Mr. Snowden’s leaks triggered a much more rapid and passionate response than would have been the case if I had simply appointed this review board’ Obama said. Though this does not mean the US government applauds Snowden, far from it.

It is not surprising that the UK government should be angry about the Snowden leaks. Nor is it surprising, though it is depressing, that the government should threaten a newspaper that is publishing stories based on the leaks. Governments do not like their secrets exposed, and it would be strange if they did not react strongly to the possession of 58,000 intelligence documents (the number — we are told — that were leaked to the Guardian).

Much more surprising – and more depressing – has been the reaction of much of the British press. The Sun accused The Guardian of ‘treason’. The Daily Mail called it ‘The paper that helps Britain’s enemies’. The Telegraph has uncritically reported claims by the government and intelligence agencies that it has helped terrorists around the world (‘Terrorists are ‘rubbing their hands with glee’ after Snowden leaks’).

The press attacks on the Guardian are framed as patriotic attempts to promote security. Yet the arguments made and language used do not balance security with freedom to publish. Indeed, these papers urge the government to constrain the Guardian’s freedom, and egg on the most vociferous MPs. The MP Julian Smith even referenced The Sun’s coverage to ask if it was not ‘time for any newspaper that may have crossed the line on national security to come forward and voluntarily work with the Government to mitigate further risks to our citizens?’ (HC Deb, 28 October 2013, c666).

To what end are these newspapers doing this? If the government does investigate and prosecute, or institute new laws to better secure ‘national security’ then we will live in a more secretive country, one in which news organisations have to be careful not to publish material that may, in the Government’s view, damage our safety and security.

If that sounds familiar it is because most non-democratic states in the world have laws that prevent media organisations from publishing information that may threaten the security of the state. In Russia, for example, the law on Combating Extremist Activity (2002) can be used against media organisations whose behaviour is considered dangerous to the State. In Syria for decades the government was able to exert control over the media through the state of emergency law. In Belarus you can serve up to five years in prison for insulting the president.

Laws such as these give broad powers to the state to prevent publication of material they do not like, or that they believe may damage their reputation internationally. Stories, for example, like MPs’ expenses.

We live in a world of leaks. Storing vast quantities of information, removing it from government or corporations, distributing it, and publishing it, has become straightforward. Leaking, to a general or a restricted public, will become more, not less, prevalent. Manning and Snowden are not anomalies, they are forerunners.

When such leaks happen, what would the government and security services prefer? Would they prefer that future Snowdens simply dumped their documents on the web? Or would they prefer that future leakers approached responsible news organisations?

No doubt the intelligence agencies would most like leakers to come to them. Yet technological, political and societal developments are such that it would be foolish to imagine information available to more than a hundred thousand people will remain secret indefinitely. The information Snowden had access to was reportedly available to 850,000 people.

We need models of how to use these leaks responsibly. We need media institutions that have the capabilities, the expertise, and the journalistic ethics, to properly assess and manage these leaks. Attack these institutions and we encourage data dumping. What whistleblower will now choose to go to The TelegraphThe Times, The Daily Mail or The Sun?

The actions of certain UK newspapers will discourage responsible whistleblowing and cow brave journalism that is in the public interest. Worse, it could encourage the government to behave in a way that discourages other news organisations from accepting data in the future. Fearing, for example, that the government will enter their offices and smash their computers.

We cannot rely on the UK government to restrain itself. Nor can we rely on our media to defend media institutions from government interference. This is why Britain needs to have an equivalent of the United States’ First Amendment. Something that Leveson recommended in his report but which, bizarrely, was ignored by most newspapers:

‘In passing legislation to identify the legitimate requirements to be met by an independent regulator organised by the press, and to provide for a process of recognition and review of whether those requirements are and continue to be met, the law should also place an explicit duty on the Government to uphold and protect the freedom of the press’ (Leveson Report, Summary of Recommendations, #33).

Sadly, no newspapers have taken up Leveson’s call for a press freedom law. Instead, quixotically, many have tilted at imaginary windmills of their own making. They have chosen to rail against a voluntary system of independent self-regulation that will not constrain their freedom, rather than defend a newspaper that is being subjected to state interference under existing laws.

The rhetoric of press freedom seems to have disappeared into Lewis Carroll’s Wonderland, where up means down, left means right, and almost everyone has forgotten what freedom really means.

Written by Martin Moore

December 11th, 2013 at 3:46 pm

George Orwell, The Daily Mail and Who Really Hates England

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This post was originally published on the Huffington Post UK on 3rd October 2013

Who else might the Daily Mail accuse of hating England? Who else has criticised aspects of England and Englishness yet still has significant influence over British politics and journalism?

One such author and journalist, writing at the same time as a young Ralph Miliband, was highly critical of aspects of England and Englishness. The English ‘are not gifted artistically’ he wrote. The English ‘are not intellectual’. They have, he wrote a ‘world-famed hypocrisy’. The English could be described, he said, as a ‘sleep-walking people’ whose ‘insularity’ has done them much harm. They are, he says, ‘inveterate gamblers, [who] drink as much beer as their wages will permit, are devoted to bawdy jokes, and use probably the foulest language in the world’. Indeed England is he said, ‘the most class-ridden country under the sun. It is a land of snobbery and privilege, ruled largely by the old and silly’.

Did the author ‘hate’ England? Are these quotes enough to damn him in the pages of The Daily Mail?

I’ve deliberately cherry-picked these quotes from an essay by George Orwell from The Lion and the Unicorn. The essay looks at patriotism and at what makes the English, well, English. If these quotes are taken in context it is clear that far from hating England George Orwell was devoted to it.

As well as the hypocrisy and anti-intellectualism, Orwell noted the ‘gentleness’ of English civilisation. ‘It is a land’, he wrote, ‘where the bus conductors are good-tempered and the policemen carry no revolvers’. He described ‘the English hatred of war and militarism’, and how most people hold a quiet patriotism, not ‘the boasting and flag-wagging, the ‘Rule Britannia’ stuff’. It is a country in which ‘such concepts as justice, liberty and objective truth are still believed in’.

There is another characteristic of Englishness that Orwell says is ‘so much a part of us that we barely notice it’. This is ‘the privateness of English life’. We are, Orwell writes, ‘a nation of flower-lovers, but also a nation of stamp-collectors, pigeon-fanciers, amateur carpenters, coupon-snippers, darts-players, crossword-puzzle fans’.

It is this privateness, and what he calls the ‘liberty of the individual’ to pursue this privateness, that makes the English so distinctive. This has ‘nothing to do with economic liberty, the right to exploit others for profit’. It is ‘the liberty to have a home of your own, to do what you like in your spare time, to choose your own amusements instead of having them chosen for you from above’.

As ever with George Orwell, he writes about what he observes. He is neither unnecessarily complimentary nor needlessly critical. For this reason his picture of the English is nuanced, accurate and human.

The Daily Mail does not fit well into this picture of England that Orwell draws in his essay. The Mail’s boasting and flag-wagging do not equate to the quiet patriotism Orwell sees in Englishness. The Mail is far from gentle and, as seen in its exchange with the Labour leader Ed Miliband, is not quick to stand down or apologise.

Though where the Mail really falls foul of Orwell’s essence of Englishness is in its approach to privateness. The Daily Mail, and particularly its online version, makes its money from prying and poking into people’s privateness. It makes a living by exploiting others for profit. This is not a pejorative statement, but simply a statement of fact.

Its routine and systematic plundering of individual liberty – as described by Orwell – runs directly counter to this definition of Englishness. ‘The most hateful of all names in an English ear’ Orwell writes, ‘is Nosey Parker’.

Yet as much as the Daily Mail is un-English, so it would be un-English in any way to constrain its freedom to print its venomous opinions. The English commitment to a free press, Orwell shows, is integral to its character. Even in 1941, a year of being at war, ‘newspapers and pamphlets abusing the Government, praising the enemy and clamouring for surrender are being sold on the streets, almost without interference’ Orwell writes.

The natural – and most effective – English response to bullies, says Orwell, is laughter. The goose-step, Orwell said, was the quintessential exemplification of the bully, ‘an affirmation of naked power’. It’s ugliness, he writes ‘is part of its essence, for what it is saying is ‘Yes, I am ugly, and you daren’t laugh at me’, like the bully who makes faces at his victim’. But the goose-step could never be used in England because ‘the people in the street would laugh’. Such ‘military display is only possible in countries where the common people dare not laugh at the army’.

The response to the Daily Mail should be the same. The Mail is desperate for its views to be taken seriously. It wants democratically elected politicians to be afraid of its opinion. Yet people are laughing at it. On blogs, in social networks, and on twitter, people are treating the Daily Mail as a joke. ‘It’s like having that embarrassing racist grandparent at a party’, said one tweet. No reaction could be more effective at diminishing the paper’s power, and no reaction could be more English.

We need newspapers to hold politicians to account, and to be integral to public life. It is not just the Daily Mail that is diminished by its attack on Ralph Miliband but British public life.

Written by Martin Moore

October 18th, 2013 at 6:18 am

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The Mail and intrusion into grief – an isolated incident?

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The post was originally published on the Media Standards Trust site on 4 October 2013

When a Mail on Sunday journalist intruded on a private memorial service for Ed Miliband’s uncle the editor of the Mail on Sunday, Geordie Greig, apologised and suspended two journalists. It was a ‘terrible lapse of judgment’ he wrote, and said that it was ‘completely contrary to the values and editorial standards of the Mail on Sunday’.

It would be more difficult for Paul Dacre to claim that such actions were completely contrary to the values and editorial standards of the Daily Mail.

Why? Because based on the evidence of formal complaints made to the Press Complaints Commission, the Daily Mail has a track record when it comes to intruding into grief.

Even during the Leveson Inquiry itself, from November 2011 to December 2012, the Daily Mail found itself having to apologise and publish corrections for intruding into grief on nine separate occasions. This is three times more than any other national newspaper during this period.

In most cases the Daily Mail resolved the issues privately through a letter, a donation to charity, and removal of the offending article from its website. But then, a month or so later, it did a similar thing again.

Here is a list of the nine cases, with brief summaries attached – most taken directly from the PCC website (with links).

Formal complaints to the Press Complaints Commission about intrusion into grief between November 2011 and December 2012*

(does not include complaints resolved directly with the newspaper or coverage/intrustion where no formal complaint was made, and does not include complaints made about other breaches of the code)

December 2012: the father of 17-year-old Edmund Smith, who tragically committed suicide, received a private letter from the Daily Mail and a contribution from the paper to charity after he made a complaint under Clauses 1 (Accuracy), 3 (Privacy), 4 (Harassment), 5 (Intrusion into grief or shock), 6 (Children) and 10 (Clandestine devices and subterfuge).
PCC link: http://www.pcc.org.uk/news/index.html?article=ODE2Mw==

November 2012: The Diarrassouba family complained to the Press Complaints Commission that the newspaper had published an article following the death of her brother [sic] which, in addition to being intrusive and insensitive in breach of Clause 5 (Intrusion into grief or shock), wrongly reported that he had been shop-lifting at the time of his death in breach of Clause 1 (Accuracy). The Daily Mail sent a private letter of apology to the complainant, altered the online article, and published an apology on its website.
PCC link: http://www.pcc.org.uk/news/index.html?article=ODA5Nw==

October 2012: the Daily Mail appeared to suggest a link between substance abuse and the tragic death of 15-year-old Harry Harling, in addition to other inaccuracies. A complaint was made on behalf of Harry Harling’s parents to the PCC that the Mail had breached the terms of Clauses 1 (Accuracy), 3 (Privacy), 5 (Intrusion into grief or shock) and 6 (Children). The Daily Mail removed the online article, sent a private letter of apology, made a charitable donation and published an apology on page 2 apology of the paper.
http://www.pcc.org.uk/news/index.html?article=ODAyOA==

September 2012: the family of Rosie Whitaker, who died tragically, complained to the Press Complaints Commission that the newspaper had published an article in breach of Clauses 1 (Accuracy), 3 (Privacy), and 5 (Intrusion into grief and shock). The Daily Mail changed the article online, removed photographs of Rosie Whittaker and made a donation to the Rosie Whitaker Memorial Fund.
http://www.pcc.org.uk/news/index.html?article=ODAyNA==

August 2012: a complaint was made to the PCC about the Daily Mail’s reporting of the death of 9-year-old, Kaian Burford under Clauses 3 (Privacy) and 5 (Intrusion into grief or shock). The Daily Mail removed the photographs from the article.
http://www.pcc.org.uk/news/index.html?article=Nzk1OA==

June 2012: Ms Lindsay Greenway complained to the Press Complaints Commission that an article in the Daily Mail, which reported the death of her sister, had breached the terms of Clauses 1 (Accuracy), 3 (Privacy) and 5 (Intrusion into grief or shock). The Daily Mail removed the online article.
http://www.pcc.org.uk/news/index.html?article=Nzg5Mw==

March 2012: A man (who wished to remain anonymous) complained to the Press Complaints Commission that the newspaper had intruded into his grief and his privacy by publishing an article following his mother’s death, which named her and included photographs of their house. The Daily Mail removed the online article.
http://www.pcc.org.uk/news/index.html?article=Nzc1NA==

February 2012: Nathalie Dye complained to the Press Complaints Commission that the newspaper had published inaccurate and insensitive information in several articles on its website about her late husband, Michael Dye, shortly after his death, in breach of Clause 1 (Accuracy) and Clause 5 (Intrusion into grief or shock). The Daily Mail sent a private letter of regret, removed several articles from its website, and appended a correction and apology to four articles about the complainant’s husband.
http://www.pcc.org.uk/news/index.html?article=NzY2Mg==

November 2011: Mrs Maria Blamires, mother of Suzanne Blamires, complained to the Press Complaints Commission that the newspaper had breached Clause 5 (Intrusion into grief or shock) of the Editors’ Code by publishing stills taken from the CCTV footage of her daughter’s murder by serial killer Stephen Griffiths. The pictures showed her daughter shortly before her death and her killer after the murder. The matter was resolved privately between the parties.
http://www.pcc.org.uk/news/index.html?article=NzQ4Ng==

Shortly before the Leveson Inquiry, in an incident with echoes of the Miliband memorial service, the Daily Mail visited the house of Mrs Vicky Cattell following her daughter’s funeral and only left after being repeatedly asked (PCC record here).

* these are the dates the complaints were resolved by the PCC. It is not clear exactly when each complaint was made or the articles to which they refer published.

You can see all 438 PCC published cases of intrusion into grief from 1997 to the end of 2012 at www.presscomplaints.org.

This piece was amended on 7th October 2013 to take account of changes made to a Guardian article speculating that Paul Dacre had tried to stop Grieg apologising. This was strongly denied and the Guardian article changed

Written by Martin Moore

October 18th, 2013 at 6:15 am

Posted in Uncategorized

The two faces of the press on regulation of private investigators

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The press defended PIs from regulation, then turned around and asked why they hadn’t been regulated.

The post was originally published on The Staggers at the New Statesman on August 2nd 2013.

The revelation that firms from two of this country’s biggest industries may have commissioned corrupt PIs – without facing prosecution – will fuel concerns that corporations potentially involved in the unlawful trade in private information have so far escaped proper investigation

Tom Harper, The Independent, 25th July 2013

There has been a rising volume of consternation in parts of the press about why non-media companies that used private investigators – who have been found to have acted illegally – were not pursued and prosecuted by the authorities.

What none of the reports to date have explored is why many of these cases were not pursued in 2007/08. Instead they have given the impression that the press was unfairly singled out.

The reason why many of these cases were not pursued in 2007/08 was because the press prevented it. It did this by campaigning aggressively and successfully to block the increase of sanctions for this type of crime. Without such an increase it was, the Information Commissioner said, almost impossible to justify the pursuit and prosecution of the culprits, let alone their clients.

To see what happened one has to go back to 2006 and the publication of a report by the Information Commissioner. It was evidence from this report, and other police operations, on which the 2008 SOCA report was based. This is the same SOCA report that has been the focus of so much current attention.

This 2006 report, What Price Privacy?, outlined the scale of the illegal trade in personal information, citing the industrial scale blagging being done on behalf of newspapers, but making clear that the trade was certainly not restricted to the media.

As well as journalists, the report said, illegal information gathering “involved finance companies and local authorities wishing to trace debtors; estranged couples seeking details of their partner’s whereabouts or finances; and criminals intent on fraud or witness or juror intimidation”.

The report contained a short section on each these non-media clients, and even specified the amount being spent by some non-media clients:

Documents seized from the tracing agent working for finance houses and local councils revealed that one agent was invoicing for up to £120,000 per month of positive tracing.

The problem, the ICO said, was that even if it pursued and prosecuted the private investigators guilty of gathering and selling this information then “those apprehended and convicted by the courts often face derisory penalties”.

These penalties – often only £100 or £150 fines – did not act as a deterrent and did not justify the police, ICO and prosecution time to pursue.

The chief recommendation of the 2006 report was, therefore, that sanctions should be increased so that they would act as a deterrent. At the same time it would make it more justified for the authorities to pursue cases and prosecute the private investigators and their clients.

“The Information Commissioner calls on the Lord Chancellor,” What Price Privacy? said, “to bring forward proposals to raise the penalty for persons convicted on indictment of section 55 offences to a maximum two years’ imprisonment, or a fine, or both; and for summary convictions, to a maximum six months’ imprisonment, or a fine, or both”

But when the report was published, the media, rather than focus on the private investigators, the insurance companies or other clients, focused almost exclusively on the potential effect of the increase of sanctions on the media.

In the second report the ICO published in 2006 (What Price Privacy Now?) the Information Commissioner remarked on the media’s response and again stressed that, despite the media’s concerns, the problem went much wider than the press:

Some of the press coverage since the report has highlighted the intrusion into the lives of high profile public figures by the media but it should not be forgotten that this trade also affects the lives of people not in the public eye and is very often unrelated to media activity.

The Commissioner’s efforts were in vain as the press continued to focus, for the following 18 months, almost entirely on the implications of the ICO’s recommendations for the press, and began a campaign to prevent the increase of sanctions.

Leveson describes the consequences of the ICO reports and recommendations:

The first was the mobilisation of a political lobbying effort by the press against the campaign [of the ICO for increased sanctions], directed to the heart of government. The second was the hardening of the attitude of the press (now unmistakably represented by the PCC) towards the ICO.

p.1024, Vol.3

Two of leaders of the press campaign, according to the Leveson report, were Murdoch McClellan (then Chief Executive of the Telegraph Group) and Guy Black (also at the Telegraph Group).

In the summer of 2007 the editor of the Daily Mail (Paul Dacre), Murdoch McClellan of the Telegraph and the Les Hinton of News International had dinner with the Prime Minister, Gordon Brown, to persuade him to help them stop the increase in sanction going through.

The campaign stepped up its efforts through early 2008 with some media interests “lobbying the Conservatives heavily in favour of removal” of the amendment to the law to increase the sanction (quote from the Information Commissioner, 25 March 2008).

Leveson was scathing about the objectives of this campaign:

The argument that the prospect of custody would have a differential “chilling” effect on lawful and ethical journalism from the prospect of a financial penalty is one which it is barely respectable for national press organisations to advance at all. Its necessary implication is that the prospect of a criminal conviction can, of itself, be regarded as a tolerable business risk, and a criminal fine a tolerable overhead, in journalism. This says little more than that “unchilled” journalism is an activity which takes calculated risks with deliberate and indefensible criminality. This is an argument for criminal impunity including (as it was put before the Inquiry) by way of a plea for indemnity from the otherwise universal application of criminal penalties; it amounts to special pleading to be placed above the law.

p.1091, Vol.3

Yet the press campaign was successful. Even though the amendments were drafted in section 77 of the Criminal Justice and Immigration Act, they were never commenced. They have still not commenced.

As a consequence, the authority responsible for pursuing cases of blagging and related offences – the ICO, continued to be severely constrained in the action it could take.

Certain news organisations, in other words, effectively prevented the pursuit of organisations that were illegally acquiring personal information in 2007/08 and onwards. These same news organisations are now claiming the failure to pursue these organisations is evidence of an unfair singling out of the press through the Leveson Inquiry.

Written by Martin Moore

October 18th, 2013 at 6:12 am

Posted in Uncategorized