The Commissioner's 32 page What price privacy now? The first six months progress in halting the unlawful trade in confidential personal information report [PDF] updated its exposure in What Price Privacy? [PDF] of an extensive illegal trade in confidential personal information, with claims that there were around 3,000 instances of newspapers - including Murdoch competitors - breaking the Data Protection Act 1998 and other statutes.
Protection under s 55 of the Data Protection Act 1998 is founded on an offence (with certain exemptions) of obtaining, disclosing or procuring the disclosure of personal information knowingly or recklessly, without the consent of the organisation holding the information. Offences are punishable by a fine only (up to £5,000 in a Magistrates’ Court and unlimited in the Crown Court).
The Commissioner commented that his preceding What price privacy? report -
exposed an extensive illegal trade in confidential personal information and made recommendations to government and industry in an effort to halt a serious threat to individuals’ privacy. 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.He went on to note that -
Respect for privacy is one of the foundation stones of the modern democratic state. It is enshrined in the European Convention on Human Rights and is directly enforceable in UK courts through the Human Rights Act 1998. Failure to respect an individual’s privacy can lead to distress and in certain circumstances can cause that individual real damage, mentally, physically and financially.
People care about their personal privacy and have a right to expect that their personal details are and should remain confidential. Who they are, where they live, who their friends and family are, how they run their lives: these are all private matters. Individuals may choose to divulge such information to others, but information about them held confidentially by others should not be available to anyone prepared to pay the right price.
Investigations by the ICO and the police have uncovered evidence of a widespread and organised undercover market in confidential personal information. Such evidence formed the core of the report, detailing how the unlawful trade in personal information operates: who the buyers are, what information they are seeking, how that information is obtained for them, and how much it costs.The report notes responses to its findings of illegality.
Among the ultimate 'buyers' are many journalists looking for a story. In one major case investigated by the ICO, the evidence included records of information supplied to 305 named journalists working for a range of newspapers. Other cases have involved finance companies and local authorities wishing to trace debtors; estranged couples with one party seeking details of their partner’s whereabouts or finances; and criminals intent on fraud or witness or juror intimidation.
The personal information they are seeking may include someone’s current address, details of car ownership, an ex-directory telephone number or records of calls made, bank account details or intimate health records. Disclosure of even apparently innocuous personal information – such as an address – can be highly damaging in some circumstances, and in virtually all cases individuals experience distress when their privacy is breached in this way.
The National Union of Journalists for example wrote to the Commissioner -
stressing their long standing commitment to journalists only obtaining information by straightforward means unless they can demonstrate that they are acting in the public interest. The Union is currently considering an addition to their code of conduct to require journalists not to publish or obtain information directly or indirectly which would breach Section 55.Newspaper proprietors - The Newspaper Publishers’ Association, Scottish Newspaper Publishers’ Association, Newspaper Society, Scottish Daily Newspaper Society, Periodical Publishers Association and Society of Editors - responded "as one" by -
In addition the Union has supported custodial sentences provided that the higher
penalties are reserved for those who feed and encourage the illegal trade by instructing journalists to break the law when there is no overriding public interest to do so. The Union believes that the illegal trade is encouraged by cost cutting by the industry leading to publications devoting fewer resources to investigative journalism and also because of disillusionment amongst journalists about the Freedom of Information Act 2000 providing a ready source of information.
The Union has stressed that journalists should not be scapegoats for newspaper proprietors and managers who pressure them into breaking the law.
making it clear that no newspaper publisher would condone any illegality. They have stressed that the industry takes the issues reported in What price privacy? very seriously and that they perceive their role as spreading greater awareness and understanding amongst journalists of data protection issues and the potential consequences of breaching the law. Building on the data protection guidance already issued by the Press Complaints Commission (PCC) and working with the Information Commissioner (ICO) they propose to:Sundry other interests put their hands on their hearts and swore that they would never condone a breach of the Act.1. encourage individual publishers to draw the information contained in ‘What price privacy?’ to the attention of senior management;The industry recognises that the situation needs constant review and as such has indicated that the Code of Practice Committee of Editors, as mentioned above in connection with the PCC, will keep the terms of the code under review and would be ready to receive further representations from the Information Commissioner.
2. distribute through industry associations to each of their members simple guidance prepared by the ICO about the terms of the Act, and ask them to disseminate it to their journalists; and
3. assess what further steps need to be taken to publicise this guidance once the exercise has been completed.
Attached to the industry’s response to What price privacy? was their submission to the Government’s consultation on increasing penalties for the deliberate and wilful misuse of personal data. While the response was not directed at the Information Commissioner it is useful to note some of its key points here as the industry argues against the introduction of a possible custodial sentence as an addition to the existing sanction of fines.
The industry believes that a custodial sentence will have a serious chilling effect on investigative journalism and that given the importance to democracy of freedom of speech, and in line with the precedent of the European Court concerning the press, an overwhelming case needs to be made for the introduction of custodial sentences. The industry maintains that no such case has yet been made by either the Information Commissioner or the Government.
The industry argues that the introduction of prison sentences would require the existing public interest exemption at Section 55 to be revised. Currently to enjoy the exemption at Section 55(2)(d) journalists have to be certain that they are acting in the public interest before obtaining or procuring any personal information which does not allow for situations where they are acting in the reasonable belief that their line of investigation is in the public interest.
The industry proposes that the problem of journalists’ involvement in the illegal trade in confidential personal information could be addressed by greater fines and more prosecutions in the Crown Court coupled with greater education for journalists about the Data Protection Act 1998.
We might wonder what a sustained investigation of practice in Australia would reveal. We might also question the ethics of consumers who have, of course, fed on several generations of intrusive print and electronic journalism but now - like Captain Renault in Casablanca are shocked, shocked, to discover that there has been misbehaviour on the premises.
a perspective on demands for money, lots of money (esp for celebrities with the finest legal advice that lots of money can buy) is provided in a cogent item [PDF] by UK QC Nicholas Caddick.
