Murdoch –Up the Creek without a Paddle?

Following the News of the World scandal, Ibrahim Hasan offers a legal analysis of Sky News' hacking admittance

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Is the Sky about to fall in on Rupert Murdoch?

On 1^st May 2012, the Culture Committee delivered its report into the phone hacking scandal at the News of World. It questioned journalists and bosses at the now-closed News of the World, as well as police and lawyers for hacking victims. Its report has concluded that Mr Murdoch exhibited "wilful blindness" to what was going on in News Corporation and "is not a fit person to exercise the stewardship of a major international company.”

But it’s not just what went on at the News of the World which has caused concern. Another of the news outlets owned by the Murdoch empire stands accused of breaking the law in the pursuit of a good story. Where will it end? On 5^th April 2012, Sky News admitted in a statement that it had hacked emails belonging to members of the public on two separate occasions.

One incident involved targeting the accounts of a suspected paedophile and his wife. The other one involved the “dead canoeist” John Darwin. His wife Anne collected more than £500,000 in life insurance payouts while he hid in their marital home.  The pair were found guilty of the deception in 2008. In the run-up to the trial former Sky News managing editor Simon Cole agreed North of England correspondent Gerard Tubb could hack into Darwins’ Yahoo! email account. The full story can be read on the Guardian website.

The interesting aspect, from a legal perspective, is the legal repercussions for Sky News. It has stated:

 “We stand by these actions as editorially justified and in the public interest.”

Note that it says editorially justified, not legally.  As will be explained below, the offences involved do not contain a public interest defence.

Accessing a person’s computer (directly or remotely) without their consent to read their emails is a criminal offence under the Computer Misuse Act 1990 which is punishable with a fine or a term of imprisonment of up to 12 months. Section 1 (1) of the Act contains the elements of the offence:

(1) A person is guilty of an offence if—

(a) he causes 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 ;

(b) the access he intends to secure or to enable to be secured is unauthorised;

and

(c) he knows at the time when he causes the computer to perform the function that that is the case.

There is no public interest defence in the Computer Misuse Act. However section 11 states that no proceedings can be brought for a section 1 offence more than three years after the commission of the offence. Darwin’s emails were accessed in 2008 and therefore a prosecution under S.1 is not possible.

Sky may also have committed a criminal offence under Section 1 of the Regulation of Investigatory Powers Act 2000(RIPA).  Here there is not time limit for a prosecution. The Guardian reports:

“The broadcaster also published a voicemail message on its website, dated 19 May 2007, in which Anne Darwin is clearly heard leaving a message for her husband. The voicemail, part of an interactive graphic, ends with her saying “I’ll try and catch you tomorrow. Love you,” which the broadcaster said showed “she was doing as much of the running as he was”.”

Section 1 makes it a criminal offence to intercept a communication in the course of transmission.  The listening to stored voicemails as well as accessing stored e mails all potentially fall into this category. The maximum penalty for such an offence is two years imprisonment. Again there is no public interest defence.

Once again this case bring into focus the highly dubious tactics of the media when trying to obtain information “in the public interest”. The setting up of the Leveson Inquiry and the inquiry by the House of Commons Select Committee on Culture, Media and Sportmeant that at first the primary concern was about allegations of phone hacking by the News of the World.  However it has now become clear that hacking phones was just one part of the unscrupulous journalist’s toolkit. It also included buying information from the police, blagging sensitive personal information from public and private sector organisations and the hacking politicians’ computers to gain access to  their e mails.

There is now a very strong case for tougher regulation of the media especially when it comes to covert surveillance activities. My view is that, amongst other things, they should be subject to more of the RIPA regime as at present they only have to comply with certain aspects (Part 1 Chapter 1 – Interception of Communications). (read my blog for more).

This is a difficult time for the Murdochs and  Sky News. The broadcaster’s parent company, BSkyB, is subject to a “fit and proper” investigation being conducted by the communications regulator, Ofcom, in the wake of the News of the World phone-hacking scandal. Cleveland police say that enquiries are ongoing into how the emails were obtained.

No doubt there is much more to come. As Kay Burley would say, “Stay with us…”

Ibrahim Hasan is a solicitor and director of Act Now Training which provides expert training in Data Protection, Freedom of Information and Surveillance Law.