I thought I would put into the public domain my answers to some very important questions surrounding the journalist phone hacking scandal. Of course I am reading the runes to obtain my answers, but after all its Friday – the day when one can speculate irresponsibly. However, please look carefully at what is said about “acceptable use” policies.
Q1: Why has the Metropolitan Police upped its inquiry and have 50 officers on the case?
I think the Met Police had been acting on the wrong legal advice which stated that unread emails could only be intercepted in breach of the Regulation of Investigatory Powers Act (RIPA).
This position was reached by looking at Section 2(2) of RIPA which states that "a person intercepts a communication in the course of its transmission by means of a telecommunication system if, and only if, he—
(a)so modifies or interferes with the system, or its operation,
(b)so monitors transmissions made by means of the system, or.
(c)so monitors transmissions made by wireless telegraphy to or from apparatus comprised in the system,
as to make some or all of the contents of the communication available, while being transmitted, to a person other than the sender or intended recipient of the communication (my emphasis).
However, the Met’s analysis misses out section 2(7) of theRIPA which extends the meaning of section 2(2). Section 2(7) states that:
“For the purposes of this section the times while a communication is being transmitted by means of a telecommunication system shall be taken to include any time when the system by means of which the communication is being, or has been, transmitted is used for storing it in a manner that enables the intended recipient to collect it or otherwise to have access to it."
So, if you include section 2(7) of RIPA it is clear that accessing a read message is still an interception as the law applies to messages stored 'in a manner that enables the intended recipient to collect it or otherwise to have access to it".
At our UPDATE event last week, Rosemary Jay added, that it was very important for those organisations who have acceptable use policies that look at private emails after they have been read (thinking that there is no RIPA issue) should re-examine them. If you retain such emails on your system to have access to them in future, then those read communications have been stored in order to enable the intended recipients to have access to them. In other words, looking at such read emails can still be subject to RIPA.
Of course we do not know for certain whether the Met’s legal advice has changed; but something clearly fundamental has.
Q2: Why has there been an offer to settle outstanding cases?
The key objective of the offer is to close the privacy cases down with a minimum of embarrassing disclosure. Those claimants who fail to settle and continue the claim in the Courts run the risk of being awarded costs if the settlement is less than what is on offer. For example, suppose you are offered £20K to settle and your refuse. If the Court awards less than £20K, you become liable for all costs.
The problem for this strategy is that the criminal inquiry risks further disclosure unless the journalists plead guilty. So, does this mean that there may be financial incentives for anybody facing a trial to plead guilty if they are guilty? An interesting thought as those journalists who plead guilty will know where other skeletons lie. They might offer to exhume them, or act as witness against senior managers. In other words, the more journalists are arrested, the more likely that the net will widen.
Q3: Are only News of the World journalists involved?
The Information Commissioner has documented in his “What Price Privacy?” series that the practice of hacking is likely to be endemic. He reported that the invoice trail indicated that the few private investigators he had investigated had delivered “services” to the following tabloid newspapers:
Daily/Sunday Mail had paid for 1,218 investigations to be undertaken by Private Investigators on behalf of up to 91 different journalists. The Daily/Sunday Mirror ordered 824 investigations on behalf of up to 70 journalists. The Sunday People ordered 802 investigations involving up to 50 journalists, and the News of the World (the paper of current interest” had ordered 228 transactions of up to 33 journalists.
The evidence above suggests there were large number of invasions of privacy by hacking and the News of the World are not the only culprits. It is also difficult to see that the 50 officers now on the case are looking at journalists from only one newspaper. In my view, this story will run and run for quite a bit.
Q4: What are the consequences?
If the Met police inquiry ranges to more newspapers, then the need for a statutory right to privacy is back on the political agenda, especially as politicians and Cabinet Ministers have been targeted by journalist hackers. A toughening up of the Press Complaints Regime, perhaps placing it on some kind of statutory basis, appears to be a minimum measure
Relevant links
"Police legal advice says there is full RIPA protection for unread spam (but no privacy protection for your confidential archive": http://amberhawk.typepad.com/amberhawk/2010/09/police-legal-advice-says-there-is-full-ripa-protection-for-unread-spam-but-no-privacy-protection-for-your-confidential-archi.html
"Privacy lawyer challenges police view of intercept law": http://www.out-law.com/page-11382
"What Price Privacy Now" (ICO report): http://www.ico.gov.uk/upload/documents/library/corporate/research_and_reports/ico-wppnow-0602.pdf.
Details of Operation Motorman: http://www.ico.gov.uk/upload/documents/library/corporate/detailed_specialist_guides/section_55_response_to_moj_consultation_20091112.pdf
Advert: Forthcoming courses including ISEB courses: Data Protection in London starting on May 10th, Manchester 12th May. FOI starts in London on 13 June. Next Update is October 17th 2011 in London. We have timetabled our PIA, Audit and RIPA courses for September. See Amberhawk main site (www.amberhawk.com)
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