Custodial offence for deliberate invasion of data protection? Forget it!

I must confess that I find it rich that New Labour Ministers, who were in government for more than a decade, are now huffing and puffing about their “phone inboxes being hacked”. The sad truth is that, in government, they could have done a great deal to protect individual privacy by making such hacking a custodial offence.

In short, they failed to implement an offence that would have extended to a very large number of situations - well beyond the difficult issue of when (or whether) it is in the public interest for the press to hack into individual voicemail inboxes.

I also make a prediction: the custodial section 55 offence in the Data Protection Act is not going to happen for the foreseeable future.

In 2006, the Information Commissioner published details of the scale of the problem. In his documents What Price Privacy and What Price Privacy, Now (pdf), the Commissioner outlined how a range of organisations were obtaining personal data by deception.

Although this blog focuses on the press, the problem of unlawful obtaining was endemic across a range of industries. The current S.55 offence usually offers a minor punishment of a fine; it is not a recordable offence, and those successfully prosecuted do not have the indignity of providing a DNA sample or fingerprints. This gives the impression that the offence is of little importance to society.

In relation to the press, the Commissioner documented that following the invoice trail of a few private investigators who had delivered services to the following tabloid newspapers:

Daily/Sunday Mail had paid for 1,218 investigations to be undertaken by Private Investigators on behalf of up to 91 different journalists. The Daily/Sunday Mirror ordered 824 investigations on behalf of up to 70 journalists. The Sunday People ordered 802 investigations involving up to 50 journalists, and the News of the World (the paper of current interest) had ordered 228 transactions of up to 33 journalists.

The evidence above suggests there was a large number of invasions of privacy but the facts cannot be proven. For instance, if there were an investigation into a target politician, the fact of the investigation (as proved by the invoice) would not reveal evidence as to the methods employed by the investigator. It is very unlikely that the fact of “hacking into voicemail inboxes" would appear on any invoice!

However, the number of investigations undertaken by a handful or private investigators at the behest of tabloid newspapers is simply staggering. They show a systemic use of this kind of investigation and it is inconceivable that all newspaper editors appear to be ignorant of the methods employed by their contracted agents. After all, in total 305 journalists had commissioned about 3,500 investigations into individuals. So is the News of the World's claim that there was an isolated case of hacking undertaken by a rogue reporter credible? I leave you to answer that one.