2 Bedford Row

BSkyB Fit and Proper Investigation - Sky News Email Hacking - Part 1 07 June 2012
Posted by: 2bedfordrowchambers

On 9^th March 2012, the date this website last published an article about the ongoing story at News Corporation it seemed that the allegations were localised to the company's print media. The only issue for debate at that stage was how the allegations against the newspapers would impact on whether BSkyB's fitness to hold a broadcasting licence.

Sky News Email hacking

Last month, the saga saw yet another crucial development. John Ryley, Head of Sky News, admitted that on two occasions senior executives had purported to authorise reporters to "access the emails of individuals suspected of criminal activity". Mr Ryley said that he stood by these decisions arguing that they were "justified and in the public interest". In support of this position, Mr Ryley said that in the 2008 case of Anne Darwin, the emails found by them were handed to police and used in the successful prosecution of her. Mr Ryley said that the police held this information as "pivotal" to their case. It may well have been of huge assistance to the Police to have journalists acting as "amateur detectives" operating without the constraints imposed by the law, including the Computer Misuse Act, but is it really in the public interest for journalists to be allowed to operate as they wish and to ignore the law in pursuit of a story? For every criminal case "investigated" in this way a cynic may wonder how many celebrities have suffered similar intrusion for stories that "interest the public" rather than being "in the public interest"?

As regards regulatory action, an Ofcom spokesperson said: "Ofcom is investigating the fairness and privacy issues raised by Sky News' statement that it had accessed without prior authorisation private email accounts during the course of its news investigations. We will make the outcome known in due course."

The fit and proper investigation

These revelations completely change the scope and focus of the BSkyB fit and proper investigation. Previously, it would have focused on the depth and breadth of the alleged criminality at News International's titles, the personnel involved at the decision making levels of the organisation and the crossover between there and BSkyB. The one person that included was James Murdoch, who has since resigned as BSkyB chair but remains on the board.

In this instance, Ofcom will be particularly concerned that the decisions to hack into email accounts were purportedly "authorised" by senior management, and that it happened on more than one occasion - quite how often remains unknown. Was this practice as isolated as the "rogue reporter" conceded at the time of the original Glenn Mulcaire prosecution, or is the scale of this dark practice yet to be revealed? One of the aggravating factors Ofcom consider when reaching a decision as to sanction relates to the extent to which senior management knew or ought to have known about the offending behaviour.

Bang Media (London) Limited and Bang Channels Limited ("Bang") - the last licensees to undergo a fit and proper investigation - stressed to Ofcom that it had rid its organisation of the personnel it held responsible for its compliance failures. That didn't satisfy Ofcom. In paragraph 1.31 of its revocation finding it said:

"In their [Bang's] written representations, the Licensees acknowledged "the severity and repeated nature of the breaches" and accepted that there had been a "failure on Bang's part to follow directions and guidance". The Licensees informed us that they have removed certain key senior members of staff, who the Licensees say were responsible for the serious and repeated breaches of the relevant codes. They also stated that one of the shareholders is now acting as managing director and has assumed full responsibility for the Licensees' future compliance with the relevant codes. However, other than suggesting that the managing director would be in communication with Ofcom every two weeks (or as required) regarding compliance with the codes, the representations did not provide any detail of measures that the Licensees has put in place to ensure compliance in the future."

The current revelations mean that BSkyB has lost the insulation it once had from the practices allegedly used by New International. BSkyB itself now has questions to answer relating to its own compliance procedures. In remedying the concerns that Ofcom will naturally have as a result of these revelations, BSkyB, when making detailed representations to Ofcom will have to present a package of meaningful structural changes to its enterprise to alleviate any fears that such behaviour could ever occur again.

In our next article, we will discuss what shape an Ofcom fairness and privacy investigation might take.

Jim Sturman QC

Chris Saad