But the ICO were not the only ones furious with Dacre and co over their lobbying against custodial penalties under section 55 of the Data Protection Act. Writing in the Guardian, 7 April 2008, the paper’s investigations editor David Leigh stated that: ‘Rarely has there been a more disgraceful behind-the-scenes lobbying campaign’ than the one outlined above. He continued: ‘Tabloid newspapers want the right to commit crimes with impunity … And they have the brazenness to complain that this campaign is designed to protect “investigative journalism”’.
However, as he rightly pointed out:
“What really threatens genuine investigative journalism in this country is the justified contempt and fear many ordinary people feel about the methods of the tabloid press. Proper investigative journalists get tarred with the same sleazy commercial brush as the rat-pack. We should be cleaning up our industry, not defending its excesses … For some editors, as they have done, to invoke the spectre of Robert Mugabe in such a grubby campaign against British government ‘tyranny’, is really to demean those courageous journalists who risk their careers and lives to expose real tyrants and real corruption”.
However, sections of the media were at last about to wake up to the full implications of Motorman. The story of Whittamore’s involvement with the press was first revealed in the press in any detail in the Guardian by Nick Davies on 31 August 2009. One of his main sources was Alec Owens, the lead investigator on the original ICO. Owens argued that the originally cited figure of 3,757 enquiries made by journalists to Whittamore was wrong and that the total was over 17,500. The article also, for the first time, named a number of the victims. The fact that many of these were celebrities, including Lenny Henry, John Cleese, Michael Atherton, Glenn Hoddle, Steve Davis, Ms Dynamite, Joanna Lumley and Bill Wyman, immediately cast doubt on claims that journalists had been using Whittamore in order to pursue only stories that were in the public interest.
On 14-15 September 2011, the Independent published details of its own investigations, also aided by Owens, which repeated the figure of 17,500 and noted that the enquiries to Whittamore included 1,028 from News International and 6,774 from Trinity Mirror titles. It also revealed that the victims of blagging included the parents of Soham murder victim Holly Wells, the parents of murdered schoolgirl Sara Payne, victims of the Dunblane massacre, Hugh Grant and Charlotte Church. As the last two loomed large in the phone-hacking scandal, the question is inevitably raised (but usually isn’t) of whether their phone numbers were originally bought from Whittamore.
The Leveson Inquiry also flushed out more details of newspapers’ use of Whittamore. In response to highly questionable assertions made in her written evidence by Liz Hartley, the head of editorial legal services at Associated Newspapers, Christopher Graham made public details of certain Associated journalists’ dealings with Whittamore, although their names were redacted from the evidence [pdf]
- Journalist JO34 – Daily Mail/Femail: 212 identified illicit transactions totalling £13,780; 467 illicit transactions and probable illicit transactions totalling £20,363.
- Journalist JO63 – Mail on Sunday (and ‘a few for the Sunday Mirror’): 59 identified illicit transactions totalling £5,025; 201 illicit transactions and probable illicit transactions totalling £8,660
- Journalist J167 – Daily Mail: 202 identified illicit transactions totalling £14,695; 503 probable illicit transactions totalling £21,942
- Journalist J193 – Daily Mail: 188 identified illicit transactions totalling £17,170; 335 illicit transactions and probable illicit transactions totalling £21,622
- Journalist J239 – Evening Standard (then owned by Associated Newspapers): 192 identified illicit transactions totalling £23,365; 357 illicit transactions and probable illicit transactions totalling £28,062.
A further table showed that the Mail made a maximum of 2,841 transactions totalling £143,855; the figures for the Mail on Sunday were a maximum of 797 transactions totalling £41,132, and for the Evening Standard a maximum of 357 transactions totalling £28,062. With considerable understatement, Thomas remarked that ‘the total sum paid by these three newspapers –over £200,000 – seems high if all that information was obtained legally’.
In March 2012 an investigation by ITV News, again aided by Owens, calculated that the highest number of requests came from 65 journalists working for the Daily Mail and its Weekend magazine. According to this investigation, these journalists spent £143,150 on 1,728 requests. These broke down as follows:
- Ex-directory numbers: Requested 1,285 at £65 each, spending £83,525
- Friends and Family numbers: Requested 90 at £336 each, spending £30,240
- Criminal record checks: Requested 3 at £500 each, spending £1,500
- Vehicle registration: Requested 20 at £150 each, spending £3,000
- Blags: Requested 9 at £90 each, spending £810
- Mobile conversions (where a name and address are obtained from a mobile phone number): Requested 49 at £75 each, spending £3,675
- Landline conversions: Requested 272 at £75 each, spending £20,400
Spending by other papers was as follows
Daily Mirror: £92,081 on 984 requests
People: £76,295 on 1,016 requests
Mail on Sunday: £62,025 on 578 requests
Evening Standard: £29,598 on 196 requests
Sunday Mirror: £27,807 on 151 requests
The News of the World: £23,306 on 240 requests
Observer: £13,270 on 201 requests
Daily Express: £13,214 on 164 requests
Sunday Express: £10,152 on 80 requests.
A breakdown of the figures for each paper can be found here.
When the Minister of State at the Ministry of Justice, Lord McNally, responded to the above-mentioned request by the Justice Select Committee in 2011 that the amendments to Section 55 be brought into force, he noted that:
This is a matter which we anticipate that Lord Justice Leveson’s Inquiry into the culture, practices and ethics of the press may well want to look at. The Inquiry’s remit specifically includes looking at the media regulatory framework in relation to data protection and why ‘there was a failure to act on previous warnings about media misconduct’. The media has a well documented interest in this issue, and indeed there is a statutory duty to consult them before making an Order under section 77 of the CJIA. The Government will therefore want to look at what the Leveson Inquiry recommends on these questions before deciding what action to take.
As we have seen, this was a matter which the Inquiry most certainly wanted to examine. Indeed, it merits an extremely early mention (at page eighteen) in the final Report, which devotes Chapter 3 of Part E to Motorman and the whole of Part H to the subject of the press and data protection. With specific reference to Motorman, Leveson concludes that ‘what has been revealed by some of the Operation Motorman evidence demonstrates an attitude to compliance with the law relating to data protection which can only be described as cavalier, if not worse: it is certainly revealing of what, at that time at least, were the practices of the press’. He also adds that ‘the extent to which Mr Whittamore’s services continued to be used by some titles after his conviction is even more revealing’ .
On the vexed question of reform of increased penalties for breaching Section 55 and the concomitant revision of the public interest test in the case of journalistic activity, the Report could not be more clear, and it is worth quoting Lord Justice Leveson’s conclusions at some length, since they so eloquently endorse the underlying argument of this chapter:
It is hard to see how the new defence could go any further. If a journalist engages in a course of conduct which prima facie crosses the criminal boundary marking the unlawful acquisition of personal information, but can show that he or she was acting with a view to publication and in the reasonable belief that it was in the public interest, there can be no conviction. Note that it is not even necessary to show that the conduct was in fact, in the end, in the public interest. There is no alternative to asking the journalist to establish that the belief was genuine, because its basis will be uniquely within his or her own knowledge. And if the belief was neither genuine nor rational it is hard to see the case for a defence to crime. The provision made by the new defence to give honest journalists trying to respect the boundaries of the criminal law confidence in doing so, appears to be straightforward to understand, and more than adequate in giving honesty the benefit of the doubt.
I am, therefore, entirely unpersuaded that the argument that there is a possible chilling effect on legitimate journalism is a reasonable one, and should be regarded as a proper reason in itself for continuing to resist giving effect to the legislation. Much more the point: Parliament has already settled the matter from a policy point of view. To the extent that the press effectively wishes to reopen not the question of penal policy but the matter of the substantive law itself, it is both too late and devoid of merit. Without suggesting that no other formulation of the new defence is imaginable, Parliament has given very close attention to the alternatives, and settled on something which, on any fair analysis, is fully capable of being made to work for the press. (1091-2)
He therefore proposed that the two amendments to the DPA should be enacted.
In more general terms, Leveson’s judgement on the relationship between the press, politicians and the ICO, as revealed by the Motorman affair, also bears out very strongly the argument put forward by this chapter:
The lessons to be learned from the narrative of the ICO and the press are entirely congruent with the evidence to the Inquiry of the approach of the press more generally. That approach is too often characterised by:
(a) resistance to independent regulation of both law and standards;
(b) a confrontational, aggressive and personal approach to its critics;
(c) powerful behind the scenes political lobbying in its own interests; and
(d) the deployment, through a very loud megaphone, of the rhetoric of the freedom of the press to stifle rational criticism and debate about where the public interest lies. (1107)
In the light of the narrative advanced in this chapter, it was, of course, absolutely inevitable that Leveson’s recommendations concerning the DPA amendments should be met with howls of outrage and a barrage of misrepresentation from most papers, whose reporting of the Inquiry throughout its course left a great deal to be desired, and whose coverage of the Report as a whole was nothing less than execrable. But this is a subject for another study. The concluding point to bear in mind here is that because the penalties for breaching Section 55 of the DPA are so wholly inadequate, members of the public have no proper protection from those who, for whatever reason, wish to steal information about them, in so doing making their lives a misery. As the ICO has repeatedly pointed out, for the most part there is no proof that these are now either journalists or those working on their behalf. But thanks to a thoroughly self-interested campaign run by sections of the British press, a campaign which has involved both twisting the arms of politicians and grotesquely misrepresenting the reforms to the DPA in the pages of various newspapers, our personal data can still be accessed illegally with relative impunity. Thus a reform which is manifestly obviously in the public interest has been cynically sabotaged by newspapers acting purely in their own commercial interests.
Whether, in the light of what the Leveson Inquiry has revealed, the main political parties will find the courage to dealing with rampant self-interest and abuse of power by the press, remains to be see, although at the time of writing the omens are not good. The grim lesson of Motorman, and indeed of the coverage of the Leveson Inquiry, is that, when it comes to protecting their ability to profit from the kind of journalism off which Whittamore and his ilk prey, newspaper owners, editors and managers will stop at nothing, and governments cross them at their peril. And that simply leaves the question: who runs this place?
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.