Earlier this year I corresponded with the Observer in relation to Operation Motorman and the systemic obtaining of illegally acquired personal information by my preferred Sunday newspaper. My concerns and correspondence are gathered here with other blog posts relating to Motorman. Further to a column by the readers’ editor – partly in response to my correspondence and linked to below – I added a series of comments and questions on The Observer website. They were not responded to. I have this evening written formally seeking a response. I will keep readers here advised of any response.
The terms of my correspondence with the readers’ editor of The Observer follow:
Dear Mr Pritchard
Earlier this year we corresponded in relation to the Observer’s use of private investigators to obtain private material, potentially contrary to s 55 of the Data Protection Act
http://www.legislation.gov.uk/ukpga/1998/29/section/55 . You wrote a column on the Observer’s involvement in Operation Motorman here: http://www.guardian.co.uk/theobserver/2011/feb/13/observer-phone-hacking-private-investigators .
I found it very informative and am grateful to you for your work.
Given that your sister newspaper, The Guardian, has this week refocused attention on blagging with columns such as this http://www.guardian.co.uk/media/2011/jul/12/blagging-dark-art-gordon-brown
and the audio of blagging of Gordon Brown’s property details http://www.guardian.co.uk/media/audio/2011/jul/11/sunday-times-gordon-brown-property (which if it related to a Scottish property could have been obtained by the Sunday Times with a simple search in the publicly searchable property registers). As Nick Davies is quoted in the first of these pieces “Many journalists will protest that there is nothing wrong with any of this,” he writes. “They will say that their job is to obtain information;
that the state has no business deciding what should and should not be published; that this is simply the free press at work. Most of all they will say they are working in the public interest. They may prefer not to acknowledge that buying their way into confidential databases involves no skill and no professional satisfaction and is really no better than a
fisherman who can’t be bothered with a rod and line and just chucks some explosives into the lake instead. Certainly, they would deny that they could, in truth, be doing most of this blagging and bribing themselves and that a big attraction of hiring private investigators … is that, for the most part, it is they and not the journalists who will end up in the dock.”
It appears then that blagging is problematic professionally, as well as being problematic legally, and it has been suggested by various media outlets during the recent News International controversy that blagged information (such as phone numbers) can be used for nefarious purposes.
Your column defended the Observer’s use of such material. You ended by writing “Publishing in the public interest is entirely defensible under the Data Protection Act. And that’s the important distinction: intercepting another person’s phone messages is just plain illegal.” I accept these points, but following your column I still had a number of
questions. I added these questions as comments to the on-line version of your column but no reply was forthcoming via the website or in your subsequent columns. My substantive comments are largely repeated here and I would be grateful if you – or senior people at The Observer or Guardian group – could address them.
I begin by noting that – contrary to the impression you give in your e-mail to me (and in the column) – I did not at any point suggest that the Observer was involved in phone hacking (even if it appears some of our elected representatives are not). I was surprised to
receive a firm denial on this when I had not identified this as a complaint (although phone hacking is also covered by the provisions of the Data Protection Act that apply to the blagging cases referred to in the article – as well as the Regulation of Investigatory Powers Act, and the phone hacking case is referred to at pp 6 – 7 of the What Price Privacy Now? report by the Information Commissioner). Given my legal background I am well aware of the difference between hacking and blagging under the DPA. My concern was, and remains, that the Operation Motorman investigation had clearly indicated that Observer journalists were involved in the acquisition of data which had been illegally obtained. In my correspondence to you I noted that a public interest defence was possible – and it appears from your column that The Observer uses that defence in some of the cases (a point I return to below).
I am though concerned by the passage in your column which suggests “Because the commissioner did not consult any of the titles before publishing his report they were unable to offer a public interest defence of their activities,” and am concerned how this squares with the position publicly stated in the Information Commissioner’s second report of 2006. The Information Commissioner indicated in its second report that if there was a
public interest justification for the transactions (which would have served as a defence to any breaches of the Data Protection Act) no newspaper or magazine involved suggested such a defence was available ( p 8 of the What price Privacy Now? report). The successor to that Information Commissioner then complained about the lack of co-operation from all media involved in Operation Motorman a matter of such concern during the evidence to the Culture and Media committee of the Commons in 2009.
The two positions of the newspaper and The Observer appear contradictory. Which is correct? Is The Observer suggesting that the Information Commissioner misled Parliament? If so, surely such a claim should be made to Parliament rather than through
the readers’ editor’s monthly column?
I remain concerned about the original response from The Observer when edited by Mr Alton, now an executive at News International – and someone who has been criticising what he seems to perceive as an over-reaction to the News International phone hacking and has been defending the obtaining of private information in his various media appearances over the past two weeks. In his comment, quoted in a blog in Journalism
http://blogs.journalism.co.uk/editors/2011/02/04/observer-seeks-to-distinguish-operation-motorman-from-the-phone-hacking-scandal/ but not in your column
“Yes, the Observer has used the services of an outside agency in the past, and while there were strong public interest defences for most of those cases, it is possible that some of the inquiries did not sufficiently fit that criterion. As a result, I have now taken steps to ensure that no inquiries will be made through outside agencies unless I believe that there
is a compelling public interest to do so.”
First, this appears to accept that there was not a public interest defence in all cases. Is that the readers’ editor’s view? The examples quoted in the article all appear potentially
justifiable but what of the examples that are covered by Mr Alton’s comments? What was he thinking of? What issues did these relate to? How many of the inquiries did not sufficiently fit the public interest criteria (meaning of course, that no defence for the
acquisition of the illegally obtained material was available)? Who checked up on the inquiries? Did editors authorise the payments? Did editors know what was being obtained? Were such inquiries assessed for a statable public interest defence before
they were made? if so, who assessed whether there was a statable public interest defence?
Will you encourage the Observer to give details of the stories where blagging was used and was not in the public interest? Will the people affected receive an apology from the newspaper?
Second, the requirement for editorial involvement appears to have been introduced as a
procedure adopted by The Observer from 2006. Was this the case in advance of that date? You say “senior figures were aware” but what does that mean? Being aware is not the same thing as seeking consultation and approval. We know the editor will now assess public interest issues (although more on that below) but what happened beforehand? Was the editor involved? Or was this a judgment call for the journalists?
Third, is the editor the appropriate person to judge a public interest defence? It may tie the editor into a decision, but this is a legal test. Is legal advice taken on the question?
At the time of my original query I noted that the Motorman case involved the records of one investigator. I asked “Did Observer journalists acquire illegally obtained confidential personal information from any other investigators?” This remains a relevant question and given the developments of recent days involving other investigators a very pertinent one.
I would also like to know when the readers’ editor first became interested in this issue. There has been a five year gap since the publication of What Price Privacy? Why was this very relevant information in your February column not been put into the public domain before then? Why did the readers’ editor not look at this issue earlier ?
I look forward to hearing from you.
Edited to note on 20 July 2011
I have since written to the readers ed to apologise for suggesting the Alton statement was not in his column. It was.