Thinking about the NightJack story
19 April 2012
15 August 2014
2 December 2013
6 December 2013
17 July 2014
Ex-Times lawyer Brett cleared of knowingly misleading the court but found to have acted 'recklessly'
19 September 2014
Why the journalist who outed the NightJack blogger should not be made a scapegoat
Over at the New Statesman, I have set out a detailed narrative of how a staff journalist at The Times hacked into a blogger’s email account, how the blogger was then outed notwithstanding contemporaneous emails alerting the editor to the possible breach of the Computer Misuse Act, and how the newspaper effectively misled the High Court. And on my Jack of Kent blog I have links for most of the materials used for that narrative.
Here I would like to set out five broader points that we can see from what happened.
First, it is clear that until recently many newspaper lawyers and journalists simply did not know any technology law. Although they had a great working knowledge of libel law and contempt of court, they were ignorant of the law relating to computer and telephone hacking. The Times’ then in-house lawyer Alastair Brett in 2009 was completely unaware of the terms of the Computer Misuse Act 1990 (CMA). Similarly, many newspaper lawyers comforted themselves with an envelope analogy in respect of the Regulation of Investigatory Powers Act 2000 (RIPA), believing that while it was an offence to open someone else’s mail, it is not an offence to peek into a letter once it has been opened. A moment’s glance at the legislation would have dispelled that illusion.
Perhaps significantly, the fourth edition of Law and the Media in 2002 only briefly mentions RIPA on a couple of pages and the CMA not at all. The book does, however, devote an entire chapter to the then almost academic risks provided by blasphemy, seditious libel and criminal libel (though it is a fairly good chapter I think: I wrote it). I do not think that may of the reporters, editors, and in-house lawyers who were involved in stories sourced from hacking in the first decade of this century were actually aware that the intrusions were illegal. After all, ’libel chill’ and general respect for court reporting restrictions both suggest that newspapers are usually cautious about legal risk. But new media sourcing appears to have been left to old media legal advice.
Second, what happened with NightJack shows that there can be a lack of rigour in considering the public interest. The public interest should not be a mere pretext for doing something you want to do anyway. The editorial team at The Times asserted that there was a strong public interest in publishing the blogger’s identity because of the use in the posts of material gained from the police officer’s own work. This, however, was incorrect though it was confidently repeated by many who should know better. There was no sensible way any real-life cases could be identified from the careful crafting of the fictional stories told on the NightJack blog.
There also appears to have been no attempt by the editorial team to identify any public interest in non-disclosure. Yet, without trying to see what the public interest is against what you want to do there is no real ’balancing exercise’ taking place. In the NightJack case, there were two clear public interest points against publication. One was the likelihood that threatened exposure would mean the blog, which was itself serving the public interest, would be pulled down in its entirety. Here it is important to remember what made NightJack so special: it was a compelling and excellently written account of front-line policing. Even those generally hostile to the police could learn about what police officers actually did and had to put up with. But the actions of The Times meant that public benefit was thrown away.
Third, there is a public interest in protecting sources, even when a blogger is their own source. One would have expected the editors at The Times to have respected that. The condition of anonymity required by the NightJack blogger is similar to that required by those sources used by reporters routinely. Some non-journalists may perhaps think that here could be a public interest in exposing a source in extreme circumstances, but any journalist would (rightly) maintain that protection of sources is an absolute principle and should be defended in the public interest in all circumstances.
None of this is to say that the public interest in non-disclosure would have necessarily outweighed the public interest in disclosure in the particular case of NightJack. But formulating a public interest basis for any course of action is only valid if there is some effort at seeing if there is also a public interest against an action. In my opinion, the editors at The Times were still able on the eve of publication to decide against outing the NightJack blogger on public interest grounds alone, regardless of the seeming breach of the CMA by their staff reporter. Invoking the public interest is not just a card for either getting out of jail or getting a story into a newspaper.
Fourth, it is now obvious that hacking of phones and emails could have happened at any newspaper. It was just because of how the scandal unfolded that it appeared initially a News of the World and then a News International problem. Had Clive Goodman and Glen Mulcaire not been so clumsy in hacking the phones of the Royal Household, the matter may not have been referred to Scotland Yard and Mulcaire’s notebooks seized. Without those notebooks there would never have been a ’For Neville’ email, and so on. There is no more reason to believe that hacking was a problem with one rogue newspaper group than it was for one rogue reporter.
And finally, there is the issue of culpability. The staff journalist promptly told his line manager and the legal manager of the incident; he was later formally disciplined. He should not be made a scapegoat. Brett may have in effect misled the High Court, but it was certainly not his decision to publish. The decision to publish, and so destroy the anonymity of the NightJack blogger, was that of the editor alone.
David Allen Green is media correspondent of The Lawyer and author of the Jack of Kent blog