The PCC and the fight against data crime

The Press Complaints Commission was pressured for a year to stop newspapers using private detectives to
obtain confidential information illegally, newly released documents
show.

The information commissioner, Richard Thomas, who regulates the Data
Protection Act, wrote to the PCC urging it to warn journalists about
illegal methods they often use to obtain personal details.

Although
the PCC is not subject to the Freedom of Information Act, the
correspondence was released under the Act by the information
commissioner.

Thomas urged Sir Christopher Meyer, the PCC
chairman, to produce "a clear public statement warning journalists and
editors of the very real risks of committing criminal offences".

Otherwise, he said, "the PCC and the principles of self-regulation will be shown in a poor light".

After
a lengthy investigation into the supply to newspapers of personal
details — such as telephone, bank and tax account records — in breach
of Section 55 of the Data Protection Act (1998), the information
commissioner launched a prosecution against six people working for
private detective agencies.

That case was later dropped, but the
conviction of a police control room employee and three private
detectives for their parts in leaking information from the police
national computer (PNC) to newspapers again highlighted the issue of
newspapers buying confidential information illegally from bin
scavengers and private detectives.

The PCC issued guidance to
editors in March over the Data Protection Act, saying: "It is important
for journalists to understand that [the Act] contains… controls and prohibitions on the way that information can be obtained and disclosed.

"There
is a specific criminal offence of unlawful obtaining of personal data.
A person must not knowingly or recklessly, without the consent of the
data controller, obtain or disclose personal data or the information
that it contains, or procure the disclosure to another person of the
information contained in personal data.

"It is also an offence to sell or offer to sell information that has been obtained without consent."

A
defence may be that it was "necessary for the purpose of preventing or
detecting crime", or was "justified as being in the public interest".

The
editor's code of practice advises on what may be covered by the public
interest, such as detecting or exposing serious misdemeanours,
protecting public health and safety and preventing the public from
being misled by some statement or action of an individual or
organisation.

But, the guidance adds: "Seek legal advice before assuming whether any of these defences will apply."

The newly released correspondence shows that the information commissioner believed the PCC was not going far enough.

Tim
Toulmin, the PCC director, told Phil Jones, assistant commissioner, in
an email of April last year: "I will have to strike a balance between
urging caution and sounding too restrictive — something the newspaper
people have been concerned about."

Jones sent an email to Thomas,
his boss, about the PCC's second draft, saying: "Given that it is, in
the end, up to them, I intend to acknowledge that it is a great
improvement on the first draft (heavily influenced by newspapers
lawyers), whilst also making clear that we don't, in any sense, endorse
it as we think that they could and should take a stronger line on
Section 55."

Jones still wanted the PCC to strengthen its advice
that a court, presented with a public interest defence, would have to
decide whether the information "was of sufficient importance to
override the protection afforded by the Act".

At a lunch with Meyer and Toulmin last December, Thomas learnt that the PCC guidance note had "run into the sand".

Thomas
then wrote to Meyer: "My concern is that unless the attention of
journalists and editors is drawn to the real possibility of committing
criminal offences under the Data Protection Act 1998, there is a real
risk that the all too widespread practice of paying to obtain
confidential information about people in the public eye will continue
unabated.

"As you know, I am strongly of the view that the PCC
and the principles of self-regulation will be shown in a poor light
unless — at the least — you are able to point to a clear public
statement warning journalists and editors of the very real risks of
committing criminal offences. Ideally, this would be reinforced by a
clear message from the PCC as to the unacceptability of journalistic
law breaking.

"We were broadly content with the draft we saw
earlier in the year… My particular concern is that journalists and
editors might take unwarranted comfort from the [public interest]
defence.

"I fear that it might be assumed that simply because a
journalist subjectively considers a particular story to be in the
public interest, the prohibitions on obtaining personal information
without consent can safely be ignored. I am satisfied that the courts
would not accept this defence lightly.

In other words, they would
consider that the public interest in the obtaining of the information
in question would have to be extremely strong to justify obtaining the
information dishonestly."

Meyer replied by saying that he had
asked Toulmin to "resurrect" the guidance note, adding: "It goes
without saying that the [PCC] cannot condone criminal behaviour, and if
the note raises awareness about what journalists must do to comply with
the Act, then that will be most welcome."

However, the guidance was not altered to address the information commissioner's "particular concern" over the public interest issue.

So
far, the information commissioner has not prosecuted any journalist for
breaching Section 55 of the Act. If he does, the courts may decide who
was right about the extent of the public interest defence.

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