by Brian Cathcart
It’s a week since Hacked Off called for the disclosure, in a form redacted only to protect the target individuals, of the whole Motorman database – the thousands of logged transactions by which national newspapers gained access to private information. What has happened since?
Plenty. But before reviewing the various developments it is worth noting the dog that didn’t bark: with the exception of the Guardian, which published a short report of our call for disclosure both in print and online, and The Independent, no national newspaper took any notice. Perhaps they just didn’t think it was newsworthy or perhaps this is further evidence of a shared code of silence in the press – most national newspaper organisations are implicated in the Motorman scandal and they have nothing to gain from publication of the details. Their idea of freedom of expression rarely extends to exposing themselves or each other to criticism.
Elsewhere the impact was striking. Our post was cross-posted elsewhere (e.g. at Inforrm, Index on Censorship and Alastair Campbell) and the links were widely shared, so that despite the silence of most of the press the message reached many thousands of people even in the first 24 hours.
And even quicker than that, it drew a direct response from Lord Justice Leveson at his public inquiry. On Monday just after 10am he said this:
“I am aware that the Inquiry is being publicly requested to publish the Motorman files beyond the redacted version published by the Information Commissioner. If Mr Sherborne, on behalf of the core participants who complained about the conduct of the press, wishes to argue that such a step is appropriate, given the terms of reference and the fact that this Inquiry is not concerned with individual behaviour — that is to say, who did what to whom — and has eschewed such investigation as a matter of fairness, but is rather concerned with custom, practices and ethics, he is at liberty to do so.”
This message was repeated the next morning.
The key points from the judge’s comments are:
(a) that he is prepared to make time at the inquiry to hear arguments on Motorman disclosure from David Sherborne, the barrister who represents what are known at the inquiry as core participant victims (CPVs);
(b) that he (the judge) needs to be convinced that publishing the Motorman files would shed light in a general way on the custom, practices and ethics of the press, which is his concern in this part of the inquiry;
(c) that in his view disclosure is partly at least a matter of fairness, with the implication that he felt disclosure now might be inconsistent with a general position he had taken on the naming of journalists.
Hacked Off has opened discussions with David Sherborne and the CPV legal team about (a). Since they do not act for us but for the officially-recognised victims we need to recruit some of these to support our case. We will keep you posted.
As for (b) and (c), we are confident that the arguments in favour of disclosure are strong ones.
After all, what could tell us more about the culture, practices and ethics of the press than a database logging thousands of transactions involving hundreds of journalists working for most of the national press? And until newspapers are asked to account for those transactions in detail nobody can say whether they were legal (as papers claim) or illegal (as the Information Commissioner’s Office has said).
As for fairness and consistency, it is hard to see how newspapers or journalists could reasonably complain if the Motorman files were opened. Naming names is what journalists and newspapers do: in the case of MPs‘ expenses they readily named every name they could, irrespective of whether the MPs had broken the law. In that case some MPs were prosecuted but with Motorman there is no such possibility: it is far too late to prosecute any journalists and neither do we want to.
And there is a more fundamental argument, which is that it is wrong that a public inquiry should proceed when so much important and relevant information is not open to the public. We are bound to be baffled and frustrated by public exchanges that appear to be conducted in code.
To illustrate this, look at evidence given by Paul Dacre, editor-in-chief of Associated Newspapers. Mr Dacre’s newspapers are known to have made extensive use of the services of Steve Whittamore, the private investigator at the heart of Motorman. The ICO published data indicating that no fewer than 99 journalists working for Associated’s papers commissioned Whittamore on at least 1.390 occasions. (Whittamore, incidentally, was also used by journalists at Mirror, Express and News international titles, as well as by reporters from the Observer and from various magazines.)
When asked about Motorman at the inquiry, Paul Dacre said:
“… everybody, every newspaper – and I see the BBC spent nearly as much on enquiry agents as we did – was using him. We didn’t realise they were illegal. There was a very hazy understanding of how the Data Protection Act worked and this was seen as a very quick way of obtaining phone numbers and addresses to corroborate stories.”
The questioning then became more specific:
Q. How do you know that you were trying to get addresses and phone numbers to corroborate news stories?
A. Because that was the main use to which they were put.
Q. How do you know that, Mr Dacre?
A. Because I, at the time, talked to my managing editors.
Q. Because we know from the material — and we’ve seen some, not all, of the underlying material — that there were requests made by Associated titles for Police National Computer checks and Friend & Family numbers. Those couldn’t reasonably have anything to do with checking out news stories, could they?
A. Of course, yes. You need to get to the people in a family to check a story, and also we don’t know whether the reporter asked friends and families. We established that often Mr Whittamore supplied information that wasn’t necessarily asked for.
Q. In one case – it is quite a stark case – the request was made for Friends & Family numbers and there were 10 phone numbers and that cost £500, and an Associated title paid £500 for it. That couldn’t have been an unsolicited request, could it? Do you know the one we’re talking about?
A. I don’t know.
Q. Is it your evidence that the reason for the request for Friends & Family numbers was in order to contact any one of those individuals in order to corroborate stories rather than to find out who the friends and family were of someone who was of interest to the Mail? Do you see that?
A. If they were of interest and they were involved in a major story, and you needed to get to them or information about them, yes, you would try to talk to them or members of their family.
Q. Is it your position that that is within the Data Protection Act; in other words, not in breach of Section 55? Request for Friends & Family numbers?
A. I would say that that information could all be obtained legally, but it would take time. This was a quick and easy way to get that information.
This is a vivid example of the inquiry tiptoeing around concrete evidence and being unable or unwilling to call a spade a spade. Unless there was a strong public interest justification – for example preventing crime or protecting public health – it was illegal to access Friends & Family phone numbers without permission. So it would surely be natural to ask,
(a) what sort of person was this target individual, and
(b) what sort of “major story” were they supposed to be involved in?
If the answer is an actress or a footballer or a relative of a victim of murder (all routine Whittamore targets), and the story had no clear public interest justification then the law was almost certainly broken.
But neither Dacre nor any of the other editors and representatives of implicated organisations who gave evidence was ever asked such direct questions. Nor did they volunteer more than bland and general explanations for their use of Whittamore. Nor has the public been given this information – even though the unredacted Whittamore files have been shared among the lawyers at the inquiry and seen by many journalists.
Did newspapers other than the News of the World have a culture of acquiring information illegally? That is surely a matter that goes to the heart of the Leveson inquiry. The answer can be found by confronting papers and journalists named in the Motorman files with the detail of the listed transactions, but that is not happening.
Hacked Off believes the entire Motorman database should be published once it has undergone the minimum redaction possible to protect the privacy of those people who were the targets of the transactions. We should know in every case the names of the newspaper and the journalist making the inquiry, the date, the fee paid, the character of the target (MP, television presenter, victim of crime…) and the nature of the information sought or acquired (criminal records, vehicle registration details, ex-directory numbers…).
We will continue to press for this, and we will keep you informed of progress.
Brian Cathcart, a founder of Hacked Off, teaches journalism at Kingston University London and tweets at @BrianCathcart