Out-Law News | 02 Jul 2013 | 12:53 pm | 2 min. read
Ofcom said that although Sky had operated "at the boundaries" of what was "appropriate" under broadcasting rules, it deemed that the public interest Sky pursued in its unauthorised accessing of John and Anne Darwin's emails outweighed the couple's privacy rights (118-page / 1.17MB PDF) and therefore justified the broadcaster's actions.
Ofcom had investigated whether Sky had breached rules set out in its broadcasting code after the media giant admitted that it accessed emails between John and Anne for the purposes of a story.
Darwin and his wife were both convicted of fraud after Darwin disappeared following an apparent canoeing accident leaving his wife to collect money from his life insurance and pension policies. The pair were later discovered living in Panama. Sky accessed the couple's emails without permission and passed details of what it found to police. It claimed that its actions were justified in the public interest and that the activity did not amount to an unfair invasion of privacy.
Ofcom said that Sky had, on the face of it, commissioned a criminal offence when it sanctioned the hacking of the Darwins' emails by one of its journalists. However, the regulator only assessed the broadcaster's compliance with its broadcasting code.
Under the Computer Misuse Act it is an offence for a person to knowingly cause "a computer to perform any function with intent to secure access to any program or data held in any computer, or to enable any such access to be secured" without authorisation. There is no public interest defence available to justify a breach of the Act. A person can be fined or imprisoned if they are found guilty of such an offence.
Under the code, broadcasters are only permitted to infringe on individuals' privacy if that infringement is "warranted". Broadcasters have to "be able to demonstrate why in the particular circumstances of the case, it is warranted", such as why "the public interest outweighs the right to privacy". The revealing or detection of crime and the exposing of misleading claims by individuals are cited under the code as being examples of actions in the public interest.
Ofcom said that although John and Anne Darwin had a "legitimate expectation of privacy" and that their privacy rights were infringed when Sky accessed their emails without consent, it ruled that's Sky's detection and revealing of a crime justified the infringement.
"[Sky's] conduct was warranted in all the circumstances," Ofcom ruled.
The regulator said, though, that it would be "unlikely to consider it warranted" for broadcasters to allow their journalists to "access private email accounts and subsequently disclose email correspondence without permission or authority from the account holder" for the purposes of programming content in most circumstances. It raised particular concern that Sky had undertaken its activities as a police investigation and criminal prosecution were ongoing and with the fact the broadcaster had no "formal procedures for authorising the activity".
However, it said Sky's conduct in this case was justified under the broadcasting code.
"The [Darwin] case had attracted considerable media and public attention at the time," Ofcom said. "The emails were accessed with a view to detecting or revealing a serious crime in circumstances where there appears to have been a real prospect that the relevant evidence would go unnoticed by investigating authorities."
Sky could not have obtained permission from the Darwins to access their emails, and the broadcaster "behaved responsibly" after it had obtained them by "passing them to the police and ensuring that there was no publication until after proceedings had concluded", Ofcom added.
"Overall, although BSkyB’s conduct is at the boundaries of what is appropriate, Ofcom considered that it was warranted in the particular circumstances of this case," the regulator said.