By Chris Brace
In this week’s Mitigation statement by Mr Langdale on behalf of Andy Coulson, a long held point of evidence has come out that nobody realised that phone hacking was illegal. The implication has been that the Regulation of Investigatory Powers Act and the Computer Misuse act were some trifling little pieces of law, that nobody realised would actually apply to Journalists.
Here’s the relevant quote from Peter Jukes’ recording of the trial, found here
“There are some features of this sorry affair which should be mentioned” says Langdale in terms of mitigation for Coulson.
“No one in the newspaper industry seems to have realised… interception of voicemail messages was illegal” says Langdale of 2000-2005
“It is a great pity it was not appreciated at the time” says Langdale of hacking “that it did not entail the commission of criminal offence”
“Mr Coulson took a cautious approach… and frequently sought and relied on legal advice” says Langdale. He also cites Surrey Police
But is that argument really tenable? Was RIPA something that had managed to avoid the finest Legal minds that Fleet Street possessed?
When the act was introduced in the year 2000 there were a large amount of articles about it being a “snoopers charter”. However, these mostly concentrated on two aspects of the bill as it was processing through to becoming law.
Firstly they concentrated on the State being able to get ISPs to provide your emails at the ISP’s expense. The second aspect of the law that papers appeared to concentrate on was the ability to jail people who wouldn’t provide the encryption keys for any locked files that they had if the authorities requested them.
It could be argued that nobody realised that RIPA dealt with anything other than state surveillance, but unfortunately that argument fails,
The TUC produced a report which they publicised called “Surveillance at work: sensible solutions” which discusses how the act would affect the employer/employee relationship, and how CCTV and email monitoring of employees and its regulation under RIPA. The report discusses interception as if it is common knowledge that any interception is illegal.
The ‘Interception of Communications’ Regulations (‘IC Regs’) came into effect on 24 October 2000. The IC Regs are an exception to the general principle that it is unlawful for a person, without lawful authority, intentionally to intercept a communication in the course of its transmission by way of a public or private telecommunications system. But intercepting communications is not unlawful if the interceptor reasonably believes that both parties to the communication consented to the interception.
There are also articles in newspapers covering the same idea. In the Guardians Business news section there is a small section on 4 September 2000 “The RIP Act and your rights” which says
The Regulation of Investigatory Powers Act is due to become law in October. A consultation period to fix regulations which outline the circumstances under which businesses can lawfully intercept employees’ communications was to expire at the end of August, but has now been extended to September 15 at the insistence of industry, which wants more powers.
What is being proposed? A 1997 European Directive requires states to protect the confidentiality of communications – that is, phone calls, faxes and emails – although there is scope for interception, to provide “evidence of a commercial transaction”, for example.The RIP Act, which already permits the government and other authorities (police, security services) to monitor email, allows the interception of emails by employers in situations where they believe that both sender and recipient have given their consent. But the draft regulations would go a step further, to authorise monitoring or recording of emails and phone calls without consent for specific reasons, such as a suspicion of “unauthorised use”.
There are several other articles from the same period of time which seem to cover the same ground and seem to demonstrate that at least some reporters both knew of the act, and knew that under this legal framework, things similar to phone hacking were illegal. And can you imagine a paper’s lawyers not reading the legal pages or not discussing such new developments in HR law, and the law that will relate to their papers investigations amongst themselves?
There have been suggestions that if the voicemails had already been listened to by the recipient, then the voicemails had already been transmitted, and so the calls shouldn’t really fall under RIPA and so weren’t considered to be illegal by the journalists involved. This seems to me to be splitting legal and technological hairs.
If you are going to think about the transmission process to this level to avoid liability under RIPA, then you would have to understand that the voicemail equipment was a computer system. And so would have to think your actions were probably a crime under the Misuse of Computers Act. I’ve seen it argued that the activity taken by those who hacked phones was so simplistic; that it wasn’t really hacking so can’t really be called a crime. In 1985 the Guardian published an article called “OnLine: Logged on, locked up – Is hacking law fair? Richard Colbey ponders” which includes this detail.
The first case under this Act to reach the Court of Appeal involved a man buying goods from a builders’ merchant where he had previously been employed. When no-one was looking he tapped the discount code into the computer so that he could get the goods at a 70 per cent discount. That case established that the Act covered computer crime that didn’t require any technical expertise, and extended beyond what is normally regarded as hacking.
So it was established law, and had been established for over a decade that illegal access to computerised systems applied, no matter how childish or nonexistent the security. Surely the idea that organisations whose core purpose was the investigation of others would be well aware of where the legal limits to their entry into the data of others lay.
Another detail that suggests that the mitigation claims are of a dubious pedigree comes from PressBofs evidence given at the Leveson Inquiry. In the first exhibit they provided to the Inquiry is the Minutes of the Code Committee meeting on Thursday, 4 March, 2004. From the list of those present News International had at least two members present.
The committee discussed a revised version of the Editors Code of practice: the Final Draft. Paragraph 11 of the revised version says
10. *Clandestine devices and subterfuge
i) The press must not seek to obtain or publish
material acquired by using hidden cameras or
clandestine listening devices; or by intercepting
private or mobile telephone calls, messages or
emails; or by the unauthorised removal of
documents or photographs.
Now this is a change from the old version of the code, which has a different section on Listening devices
8. *Listening Devices
Journalists must not obtain or publish material
Obtained by using clandestine listening devices
or by intercepting private telephone
So the Editors Code Committee recognises that the technology has changed and some extra things need including. And it specifically includes messages in the selection of things newly included. It is scarcely credible that reporters wouldn’t realise that these things were legally problematic, and as Mr langdale said in mitigation for his client. “Mr Coulson took a cautious approach… and frequently sought and relied on legal advice” . If you took a cautious approach, wouldn’t you at least have looked at the changes in the Editors code?
Having seen that wouldn’t you ask the two people who worked at your company who had been at the meeting if they had included the interception of phone messages in the list of excluded activities because they were illegal? The responsibility for ensuring adherence to the Code rested largely with editors so can we see it as anything other than Wilful Blindness on his part? The more we look at the background to his mitigation claim, the more fanciful it appears.
Reposted with kind permission of Chris Brace, AKA Mr Ceebs