The hoax telephone call to the King Edward VII Hospital in which two DJ’s blagged private information about the Duchess of Cambridge has become the main item on the news today after the apparent suicide of the nurse who was duped by the call. The Australian radio station, 2Day FM, whose DJs were responsible for the call told the “Daily Telegraph” that “it had not broken any laws“. But, as pointed out by Dr Chris Pounder on the Hawktalk blog the position under the Data Protection Act 1998 (“DPA”) has not been considered.
The two DJs are reported to be “saddened and shocked” by the recent turn of events and have been taken off the air. However, the Chief Executive of the radio station’s parent company said that
“This is a tragic event that could not have been reasonably foreseen and we’re deeply saddened by it. I spoke to both presenters early this morning and it’s fair to say they’re completely shattered. Prank calls as a craft in radio have been going for decades and decades, they are not just part of one radio station, or one network or one country, they are done worldwide.”
But “prank calls” which involve the disclosure of personal data – or sensitive personal data such as medical information – engage the provisions of the DPA. Section 55 is entitled “Unlawful obtaining etc. of personal data”. It provides that
(1) A person must not knowingly or recklessly, without the consent of the data controller—
(a) obtain or disclose personal data or the information contained in personal data, or
(b) procure the disclosure to another person of the information contained in personal data.
A person who contravenes section 55(1) is guilty of an offence (section 55(3)).
It appears that, in the course of the “prank call” the Australian DJs did indeed “obtain personal data” relating to the Duchess of Cambridge – about her medical condition. This was plainly “without the consent of the data controller” (the King Edward VII hospital). There is no difference between obtaining private information as a “prank” and obtaining it to sell or publish. In short, it appears that the two DJs may be guilty of the section 55 offence.
There are a number of defences under section 55. These include showing
“that in the particular circumstances the obtaining, disclosing or procuring was justified as being in the public interest”. (section 55(2)(d).
There is, however, no credible argument that obtaining private medical information about a pregnant woman from a hospital by deception is “in the public interest”. Such an argument would not be accepted by an English court.
If the two DJs were to come to England and were prosecuted and convicted of this offence what penalty could be imposed? At present, the only penalty for this offence is a fine (section 60). A fine of £5,000 would be standard. By section 77 of the Criminal Justice and Immigration Act 2008 the Secretary of State has a power to increase this penalty to include a sentence of imprisonment. This act also included an enhanced defence for journalists – reasonable belief that disclosure was justified in the public interest (section 78).
These provisions have never been brought into force. The Leveson Report deals with the successful campaign by the press to stop this provision being brought into force (see, in particular, Vol 3, pp.1085-1094). Lord Justice Leveson recommends that
The necessary steps should be taken to bring into force the amendments made to section 55 of the Data Protection Act 1998 by section 77 of the Criminal Justice and Immigration Act 2008 (increase of sentence maxima) to the extent of the maximum specified period; and by section 78 of the 2008 Act (enhanced defence for public interest journalism).
The press, apparently, continue to oppose this recommendation and the Government has not committed itself to its implementation. Blagging personal information – whether by “hoax calls” or by crooked private investigators – is a crime and should be appropriately punished. This Leveson recommendation should be implemented without delay. The press should not be permitted to get away with their special pleading on this issue.