Notwithstanding the representations of the PCC and others the proposal to toughen the sanctions for infringing the DPA were endorsed by the DCMS Committee, which stated that ‘we believe that sufficient safeguards exist to protect legitimate investigative journalism and do not believe that the introduction of custodial sentences for offences under Section 55 of the Data Protection Act 1998 would have the chilling effect claimed by the press”. It also noted with approval the fact that the government had in February 2007 proposed to amend Section 60 of the DPA (via the Criminal Justice and Immigration Bill which was then going through Parliament) so as to introduce exactly the sanction recommended by the ICO..
The Bill containing the amendment to the DPA received its second reading in the Commons on 8 October 2007, passing through by the end of the year. Section 77 of what is now the Criminal Justice and Immigration Act 2008 (“CJA”) contains the provision for increasing the penalties for infringing Section 55 of the DPA. But it must be understood that it, by itself, does not directly increase the penalties; instead it gives the Secretary of State the power to increase the penalties by means of a statutory instrument or order. But although Section 77 is in force, and although the ICO has consistently pressed the Secretary of State to introduce such an order, he has so far flatly refused to do so. And as no order has been introduced, the DPA has not yet been amended. All this in spite of the fact that in October 2011 the Justice Select Committee urged the government to act and in July 2012 the Home Affairs Select Committee did likewise.
‘A powerful campaign’
In order to understand why this is the case, we have now to turn to the press campaign against toughening the DPA, which is still ongoing at the time of writing. Thanks to the Leveson Inquiry, we now know considerably more about this than we did at the time. As Richard Thomas made clear in his written evidence to the Inquiry [pdf], from the start of 20008, ‘press organisations were engaged in a powerful campaign against the proposal’ and their direct interest in the matter resulted in a ‘hostile attitude which made it very difficult to achieve our objectives’. It was an experience which, he avers, left him ‘in no doubt about the power of the press’, and quite remarkably, given the vista of press wrongdoing which Motorman uncovered, he admits that in 2007 and 2008 he told his colleagues that, in hindsight, ‘it may have been a mistake on our part to have highlighted press misconduct in our reports. We may have made better progress if we had concentrated more on breaches of Section 55 by other sectors’.
On 27 October 2006, Thomas met Les Hinton at News International in his capacity as Chairman of the Editors Code Committee to discuss the issues raised by Motorman. Also present were Ian Beales and PCC Assistant Director Stephen Abell. According to Thomas’ account of the meeting [pdf], Hinton and Beales argued 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.
Precisely the same argument would be advanced by the Editors’ Code Committee to the DCMS Select Committee in 2007, as we have already seen. As Lord Justice Leveson rightly observes:
‘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, industry) territory’ (Report, 1026).
That the PCC’s paymasters were indeed battling with the ICO was proved just two days later, when Thomas was rewarded for his visit to News International by a highly inaccurate editorial in The Sunday Times headed ‘A Curb on Free Speech’, which argued that ‘the duty of the media is vital in the struggle to maintain an open society. Yet Mr Thomas would send reporters to prison for fulfilling it’. It concluded that ‘the threat of imprisonment will curtail free speech even if the journalist can argue a defence of public interest, something that is a notoriously prone to different interpretations by different judges. Mr Thomas is complicit in placing another brick in the wall that the state is building to protect itself from unwanted scrutiny’. It also noted, without apparent irony, that the ICO’s report What Price Privacy Now? had been ‘little noticed’.
Thomas wrote to the paper in response to this article, but his letter was never published. Similarly The Times, 1 November, carried an article by Magnus Linklater entitled ‘Hands Off Whistleblowers, We Need Them’ which stated that:
Some curious steps are being taken to limit the scope of investigative journalism. A government that has proclaimed itself firmly as a champion of free speech, introducing a Freedom of Information Act and appointing a commissioner to enable the citizen to penetrate the corridors of power, appears on the point of introducing a privacy law by the back door. It could all too easily prevent investigative journalists looking at personal data in pursuit of a public-interest story; deter whistle-blowers from revealing malpractice; and blow wide open the confidentiality that protects the journalist and his source … Hitherto, journalism has been largely protected from the full rigours of the DPA but prison sentences for breaches of Section 55 will have a massive ‘chilling effect’ on free speech. The reporter will be deemed to be indulging in criminal activity unless he or she can persuade a judge that the outcome of their inquiries is indeed in the public interest. Not only may judges take varying views of what constitutes public interest, but the investigation may still be at a tentative stage, when proof one way or the other is hard to demonstrate.
However, the really crucial activity was happening behind the scenes. In a speech to the Society of Editors on 9 November 2008, Paul Dacre revealed that he, Les Hinton and Murdoch MacLennan, chief executive of the Telegraph Media Group, had lunched with Gordon Brown on 10 September 2007 and discussed Section 55, which Dacre described as:
A truly frightening amendment to the Data Protection Act, winding its way through Parliament, under which journalists faced being jailed for two years for illicitly obtaining personal information such as ex-directory telephone numbers or an individual’s gas bills or medical records. This legislation would have made Britain the only country in the free world to jail journalists and could have had a considerable chilling effect on good journalism. The Prime Minister – I don’t think it is breaking confidences to reveal – was hugely sympathetic to the industry’s case and promised to do what he could to help. Over the coming months and battles ahead, Mr Brown was totally true to his word. Whatever our individual newspapers’ views are of the Prime Minister – and the Mail is pretty tough on him – we should, as an industry, acknowledge that, to date, he has been a great friend of press freedom.
Dacre also revealed that meetings were also arranged with the Lord Chancellor, Jack Straw, and his officials, ‘under the brokerage of Number 10’, and that the lobbying was ‘fast and furious’.
At the end of November 2007, the government was still pressing ahead with its amendment to the DPA. However, by the turn of the year, the press campaign was beginning to tell. We know from Thomas’ written evidence to Leveson [pdf] that on 18 January 2008 he attended a meeting with Maria Eagle, the Minister in charge of the Bill at the Ministry of Justice, at which representatives of The Times, the Newspaper Society and the Telegraph newspapers argued against the amendment to the Data Protection Act. And from Straw’s own evidence [pdf] we know that earlier in January 2008 he had received a letter from Dacre setting out his concerns about the increase in penalties. He also met Dacre, MacLennan and Rebekah Brooks. Not altogether surprisingly, then, Thomas was warned by Straw on 11 February and again on 3 March that he would be withdrawing the clause. Straw’s own evidence shows that he was worried that, if the clause remained in it, the Bill would be delayed by blocking amendments from the Lords (in which the government did not have a majority, and whose members had doubtless been lobbied hard by the press/PCC). The reason for his sense of urgency was that he needed to enact the whole statute by 8 May 2008 because it contained provisions preventing prison officers taking industrial action, and the threat of such action was looming. However, other ministers objected to this course of action, and the clause’s future hung in the balance.
On 4 March Thomas wrote to Straw [pdf], arguing that:
The representations against the measure from media organisations have not been convincing. In effect, they are arguing against a criminal offence which has been on the statute book for many years. They object to tougher sanctions against activities which they say do not exist or are not widespread. The louder their protests against stronger penalties, the more it suggests questionable practices. The offence is only committed when there is deliberate or reckless disclosure of personal data without the consent of the organisation which holds it. The implication of their case is that they wish to be able to break the law.
The following day he met with Gordon Brown and the Cabinet Secretary, Sir Gus O’Donnell, and was told that the clause would be withdrawn unless a compromise over the matter of freedom of expression could be achieved with the press. The same day, Lord Hunt, speaking for the government, told the Lords at the Committee stage of the Bill that ‘we intend to withdraw this clause on Report unless a satisfactory solution balancing these objectives can be identified by all parties involved’.
On 7 March Straw met with Brown and it was decided to ask Sir Suma Chakrabarti, Permanent Secretary of the Ministry of Justice, to hold discussions with Thomas and the press in order to try find a solution. Between 11 March and 2 April Thomas attended three meetings with him, and Dacre, MacLennan, Brooks and Guy Black attended three separate meetings. The compromise that emerged entailed that the custodial sentence for breaking Section 55 of the Data Protection Act would require both consultation with the press and a Ministerial Order before being activated.
However, as a further result of this ferocious lobbying by the press, another clause (Section 78) was added to the CJA. This introduced an additional public interest defence into the DPA which stated that the penalties stipulated in Section 55 would not apply to a person who could show that they acted ‘with a view to the publication by any person of any journalistic, literary or artistic material’, and ‘in the reasonable belief that in the particular circumstances the obtaining, disclosing or procuring [of information] was justified as being in the public interest’. ‘Reasonable belief’, of course, introduces a highly subjective element into the public interest defence, allowing any journalist to claim that they believed that they were acting in the public interest when investigating a story which was, in fact, entirely devoid of any such content. However, this amendment too has not come into effect. The CJA leaves it to the Secretary of State to set the date for Section 78 coming into force, and no date has yet been set. The DPA is therefore currently not amended in this respect either.
This campaign of behind-the-scenes lobbying by the press, allied with distortion both by omission and commission within its own pages, clearly left an indelible mark on the ICO. Witness, for example, Leveson’s remark on 9 December 2011 to the effect that if journalists were seriously arguing that there was a public interest in looking at Friends and Family phone numbers, ‘you might as well then say that data protection doesn’t run to journalists’, to which Francis Aldhouse (the former Deputy Information Commissioner) responded: [pdf] ‘There are those who think that the legislation was constructed to achieve just what you’re saying’. And note also an exchange at the Inquiry on 26 January 2012 between Christopher Graham and Rhodri Davis, counsel for News International. The latter asks: ‘Isn’t the way through this, which might perhaps satisfy both parties, simply to exempt from the threat of a prison sentence anyone who is acting for the special purposes of journalism, artistic or literary matters?’ To which Graham angrily responds [pdf]:
“How much of a good deal do you guys want? Excuse me, sir, for being heated about this, but you fought everyone to a standstill back in 2006/7. You did it again in 2009/10. You’ve got so many privileges and exemptions … It sounds to me as if the representatives of the press want to be somehow above the law. Surely a free press operates within a framework of law, and a vibrant and healthy press, challenging those in authority and doing the job that it should be doing and the job that I joined the profession to do, operates within the law. Yes, okay, you sometimes have to apply the dark arts to get the story, and then you’re accountable for it. And if you’re really in trouble, that’s the mitigation that you put to the court. But we can’t keep having more and more carve-outs and reductions and special cases, surely”.
Julian Petley is Professor of Screen Media and Journalism at Brunel University, Chair of the Campaign for Press and Broadcasting Freedom, a member of the advisory board of Index on Censorship and of the editorial board of the British Journalism Review. He has written widely on the press.