Phone-hacking scandal prompts ‘public interest’ debate

27 April 2011

By Rebecca Lowe

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The ongoing phone-hacking scandal at the News of the World, owned by Rupert Murdoch’s News International, looks set to be one of the most expensive to hit a British media group, with legal costs predicted to rise into the tens of millions of pounds.

Last week, Britain’s largest circulation Sunday newspaper issued an unprecedented apology for tapping into the mobile phone voicemail messages of eight public figures between 2004 and 2006. There are currently known to be at least 91 alleged victims of the scam, but law firm Mishcon de Reya, which is acting for several of the claimants, estimates there could be more than 6,000.

Claimant lawyers involved

Charlotte Harris, Mishcon de Reya: claimants include actress Leslie Ash and former footballer Lee Chapman

John Kelly, Schillings: claimants include football commentator Andy Gray and comedian Steve Coogan

Tamsin Allen, Bindmans: claimants include Chris Bryant MP

Caroline Kean, Wiggin: representing FA executive direct David Davies

Gerald Shamash, Steel & Shamash: representing former Labour Party director of communications Alastair Campbell

Mark Lewis, Taylor Hampton Solicitors: representing former England football manager Sven Goran Eriksson

Currently, 24 public figures are seeking compensation from News International, and last Friday the High Court ruled that four test cases should go ahead later in the year. Clive Goodman, the News of the World’s royal editor, and Glenn Mulcaire, a private investigator, have both already been jailed for intercepting messages. Assistant editor Ian Edmondson, chief reporter Neville Thurlbeck and journalist James Weatherup were all arrested earlier this month.

Nevertheless, phone hacking and other illegal activities may be appropriate for news gathering in circumstances where there is a strong public interest defence, the legal chief of a leading UK newspaper has said. ‘Law breaking’ could be ethically acceptable in limited cases of investigative reporting, according to Gillian Phillips, Director of Editorial Legal Services at Guardian News & Media Ltd, based in London.

Under UK law, it is illegal to gain access to another person’s telephone under the Regulation of Investigatory Powers Act 2000 (RIPA), regardless of whether the material uncovered is in the public interest.

‘I would always be an advocate of including some sort of public interest defence in any legislation of this sort,’ Phillips said. ‘For example, this is the case  under section 32 of the Data Protection Act 1998, where civil liability on the part of the media for breaching the data protection principles depends upon whether the defendant in question can establish a reasonable belief that publication would be in the public interest.

‘It seems to me that this acknowledges the important role the press have to play in uncovering corruption, crime etc, and leaves it to a court to decide if that was acceptable.’

Pia Sarma, Senior Legal Advisor for Times Newspapers Ltd, was contacted by the International Bar Association but declined to comment. A spokesperson for News International, publisher of the Times, said: ‘Our journalists operate within the Press Complaints Commission Code of Practice. The code is written into all journalists’ contracts and if they are found to be in breach of that, appropriate action is taken.’

When asked on BBC Radio 4’s Today programme whether there were any circumstances in which he would ‘sanction the interception of communications’, Guardian editor Alan Rusbridger admitted he had permitted the use of private detectives in a limited number of cases in the past, in line with Press Complaints Commission (PCC) guidance.

The PCC code states that 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’, unless there is a strong public interest and the material cannot be obtained by other means. 

‘Whenever people have come to me and said, “Can I use private detectives?”, in 99.9 per cent of cases I've said no,’ Rusbridger said.

‘But the PCC code does say that if you're exposing serious crime, you can use means that are underhand. I think it has to be an incredibly high bar. After all, until recently, if the police wanted to do this they had to go to a High Court judge. So that’s the sort of standard you are asking for. It’s evident that in the mass of these cases, it was just celebrity gossip they were after, with no possible justification.’

For Phillips, the debate is not limited to phone hacking, but potentially extends to a broad range of illegal activities.

In an interview with the IBA, she said: ‘The debate has changed and moved on, and it could be the case that in certain circumstances, depending on the public interest in the story, it may be appropriate to do all sorts of things. In any circumstance there comes a point when you could say any behaviour is justified because the public interest is so high.

‘If there is a top level conspiracy and the only way you can get behind it is to engage in law breaking, you could say that was perfectly justified. I think journalism at that level should be about the public interest, but there may be a period of time when you just don’t know if that public interest is going to be there, so you have to go down that route a certain length.’

Guardian investigative reporter David Leigh admitted ‘going down that route’ in the wake of Clive Goodman’s guilty plea in 2006, when he tapped into the mobile phone messages of a corrupt arms company executive.

Writing in the Guardian, he said: ‘I was not interested in witless tittle-tattle about the royal family. I was looking for evidence of bribery and corruption. And unlike the News of the World, I was not paying a private detective to routinely help me with circulation-boosting snippets.

‘That is my defence when I try to explain newspaper methods to my current university journalism students, some of whom are rather shocked.’