Out-Law News | 11 Apr 2012 | 2:32 pm | 4 min. read
Paul Staines has published records recovered during an investigation into alleged data blagging offences by journalists on his Guido Fawkes blog.
The Information Commissioner's Office (ICO) said that the publishing was "irresponsible". Staines published the 'Blue Book' section of the files from Operation Motorman. This was an "apparent breach" of the Data Protection Act, the ICO said.
Staines has defended the publication of the files by claiming that it will help victims of data blagging obtain justice.
Operation Motorman was an investigation begun in 2002 that included raids on the offices of private investigators including those of Steve Whittamore, who kept records detailing customers of 'blagging' services and their requirements. Blagging is the use of deceit to extract personal data from people or organisations.
When the ICO looked at the files of Whittamore, an investigator who operated a network of contacts skilled in accessing private information, they found that almost every newspaper group had used his services. No journalist was ever prosecuted on the evidence uncovered during Operation Motorman.
The 'Blue Book' files contain more than 1,000 entries relating to requests made by News International journalists for Whittamore to obtain information for them, according to Staines. News International owns titles such as The Sun and The Times as well as the now-defunct News of the World. Whilst the blogger said that journalists named in the Motorman files may not necessarily have committed an offence, he said the publication of the information was justified as there is "overwhelming public interest in the victims getting justice".
However, the ICO criticised Staines' actions.
“We strongly condemn the irresponsible publication of material from the Motorman files," the watchdog said. "Putting these into the public domain in this way is a serious violation of many people’s privacy and raises more questions than it answers."
"People who are concerned that their personal data may have been included in the Motorman files are able to contact the ICO via our website to make a ‘fast-tracked’ Subject Access Request under the Data Protection Act (DPA). The issue of publication is being considered by the Leveson Inquiry and it’s most unfortunate that Guido Fawkes has chosen to jump the gun. The ICO will now consider what further steps it should take in the face of this apparent breach of the DPA," it said.
The Leveson inquiry into press standards has heard evidence relating to the ICO's handling of Operation Motorman. Staines said the newspapers have acted in "self-preservation" by neither "naming nor shaming" reporters listed in Whittamore's notebooks and that Leveson himself had rejected "two applications" to release the files.
"We have a situation where the judge charged with investigating the crimes carried out by the media is covering up their crimes," Staines said in his blog.
"It seems to Guido that there is no political will to see this through, the press are by and large keen for their own reasons to suppress the truth and the judiciary are actively suppressing the evidence. In those circumstances it is only by bringing the evidence out into the open that justice will be done," he said.
Last year a former investigator at the ICO, Alex Owens, told Leveson that the watchdog had chosen not to prosecute journalists for breaches of data protection law on the basis of information uncovered during Operation Motorman because it was scared of the power of newspapers. Owens had claimed that there was sufficient evidence to prosecute journalists.
Owens said that no one from the ICO's investigations unit "ever spoke to a journalist" about findings made during Operation Motorman. The ICO typically had its "heads buried in the sand" over the issue, he said. Owens has admitted that he kept a personal copy of evidence obtained during Operation Motorman.
However, former ICO deputy commissioner Francis Aldhouse told Leveson that pursuing prosecutions against reporters could have had a "chilling effect" on press freedom and that there would have been "practical challenges" to obtaining a successful prosecution.
In 2003 legal advisors to the ICO told the watchdog that information uncovered during Operation Motorman showed journalists had committed offences under the Data Protection Act but that "informal cautioning" of journalists and editors was the way the watchdog should tackle the problem. The ICO's legal advice was disclosed during the Leveson inquiry late last year.
David Smith, the current deputy commissioner at the ICO, has said that the watchdog was discouraged from "pursuing prosecutions" against reporters because it "would not be in the public interest" and because to prove "beyond all reasonable doubt that the journalists who received information from Mr Whittamore knew it could only be obtained illegally". Smith said that even if this proof had been obtained journalists would only have been likely to receive a "conditional discharge" for any offences and some would have had a valid public interest defence in any case.
Under the Data Protection Act a person is generally guilty of an offence if they "knowingly or recklessly ... obtain or disclose personal data or the information contained in personal data, or procure the disclosure to another person of the information contained in personal data" without consent from the 'data controller'.
A person is not guilty of an offence if they can show that unlawfully obtaining, disclosing or procuring of the personal data was justified as being in the public interest. The Data Protection Act provides an exemption from certain of its provisions where personal data is being processed for journalistic purposes, recognising the special importance of the public interest in freedom of information.
The ICO has long bemoaned the lack of a jail sentence punishment that it would like to see introduced for data blagging offences.
Under the Criminal Justice and Immigration Act the Justice Secretary has the power to introduce new regulations that would allow a custodial sentence penalty to be available for blagging offences under section 55 of the DPA, but those powers have yet to be used. The current penalty for committing a section 55 offence is a maximum £5,000 fine if the case is heard in a Magistrates Court and an unlimited fine for cases tried in a Crown Court.