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Sky News email hacking - Ofcom fairness and privacy investigation. 04 July 2012
Posted by: 2bedfordrowchambers

In our last article we discussed what impact the Sky email hacking revelations would have on Ofcom's continuing "fit and proper" investigation into BSkyB. In this article, we shall examine what shape might any Ofcom fairness and privacy investigation take.

Ofcom's fairness and privacy provisions can be found in sections 7 and 8 of the Broadcasting Code. These sections are always considered together because they are distinct from all other sections of the code in that a complaint must be made my someone who participated in or had a direct interest in the relevant programme (known as "the person affected", defined in section 130 of the 1996 Act).

Herein lies the first issue Ofcom must deal with; whether it has jurisdiction to investigate this conduct at all. Whenever Ofcom first receives a complaint it must arrive at an "Entertainment Decision" in which Ofcom decides whether a complaint falls within its jurisdiction. Section 111(1) of the Broadcasting Act 1996 sets out that Ofcom shall not entertain a complaint unless it is made by the person affected - that doesn't seem to be the case here.

However, paragraph 1.6 of Ofcom's Procedures for the handling of Fairness and Privacy complaints published on 1 June 2011 states that: "Ofcom is normally under a duty not to entertain such a complaint unless it is made by the "person affected" or by a person authorised by him/her to make the complaint on their behalf".

This seems to suggest that there may be an occasion in which Ofcom will entertain a fairness and privacy complaint when it isn't made by the person affected - despite how Section 111 is constructed. This has happened once before, in the "Sachsgate" sanction. The BBC was fined a total of £120,000. £80,000 of it was for unwarranted infringement of privacy.

In that case Ofcom argued that its principal duties are to further the interests of citizens in relation to communications matters and the interests of consumers as set out by section 3(1) of the Communications Act 2003, and to secure a number of other matters, one of which being "the application, in the case of all television and radio services, of standards that provide adequate protection to members of the public and all other persons from unwarranted infringement of privacy resulting from activities carried on for the purposes of such services" (section 3(2)(f) of the 2003 Act).

It went on to argue that "Ofcom's general duty to apply 'standards' relating to unwarranted infringements of privacy sits separately from its duty under section 110 of the 1996 Act (as amended by section 327 of the 2003 Act) to consider and adjudicate on complaints relating to unwarranted infringements of privacy and is not dependant upon the receipt of a complaint from an individual or organisation."

It could well be argued that this interpretation does not sit comfortably with section 111 of the 1996 Act. This argument may well come to the fore once again should Ofcom decide to investigate Mr Ryley's confessions under the fairness and privacy sections of the Broadcasting Code.

The cases that Mr Ryley referred to clearly invoke Rule 8.1 of the Broadcasting Code. It states: "Any infringement of privacy in programmes, or in connection with obtaining material included in programmes, must be warranted."

By "warranted" the Code means justified in the public interest, words which Mr Ryley himself used when disclosing the revelations to the media. Notwithstanding the argument of justification put forward by him, particularly in relation to the Anne Darwin case in which what they found was ultimately used in the successful prosecution - the behaviour in and of itself is a criminal offence by virtue of being a breach of the Computer Misuse Act 1990. That offence does not have a public interest defence. Even though any infringement of privacy Ofcom investigate does have a public interest defence, Ofcom simply could not attempt to justify any action which was, on the face of it, illegal.

The last time Ofcom was faced with a similar issue was the case of Send in the Dogs, whereby a complaint was made by "Mr E on behalf of F". The programme showed an incident in which a youth ("F") was pursued and arrested by police in connection with the reporting of a stolen car. The whole incident was broadcast. Prior to broadcast F had been convicted in the youth court. Section 49 of the Children and Young Persons Act 1933 reporting restrictions were in place. The broadcast clearly breached those restrictions. F's father, Mr E complained to Ofcom on his son's behalf. Ofcom found that: "As statutory reporting restrictions applied to F's convictions, he had a legitimate expectation that such information would not be included in a television programme. As the programme broadcast information about these convictions, his privacy was infringed. This serious infringement of his privacy was not warranted."

Ofcom would almost undoubtedly come to a similarly styled finding in relation to the Sky News revelations, notwithstanding the public interest arguments put forward by Mr Ryley.

If found in breach, could there be a sanction?

Ofcom may well turn to consider whether it would be appropriate to sanction BSkyB, licence holder of Sky News. Ofcom would need to consider whether it felt the breaches were serious and/or repeated. In light of both instances appearing to be illegal, Ofcom would more than likely take the view that sanctions should be considered.

Ofcom's sanction powers are limited to either £250,000 per breach or 5% of qualifying revenue (calculated by adding together revenue gained from advertising, sponsorship and subscription) per breach, whichever is the greater. It's safe to say in the case of BSkyB that the qualifying revenue will be the greater.

Ofcom views privacy breaches particularly seriously and penalises them accordingly. There have been 3 previous fairness and privacy breaches that have been sanctioned in Ofcom's history. First, KissFM who were fined £175,000. Then the Ross/Brand Sachsgate sanction of £120,000. Finally and most recently, Press TV. This was a sanction of £100,000. The licensee subsequently had their licence revoked because it transpired during the course of the investigation that it did not have editorial control over the channel, the headquarters in Iran did.

Maziar Bahari was a freelance journalist for Channel 4 news and Newsweek magazine. He was in Iran reporting on the presidential elections of 2008 and the rioting that took place in its aftermath. He was captured by the Iranian authorities and was held in prison for almost 6 months on suspicion of espionage. Whilst in prison he was asked if he would do an interview confessing to be a spy for the West. If he were to give that interview, he would be released. He gave the interview and it was broadcast by Press TV in the UK. Mr Bahari complained to Ofcom that he was treated unfairly in the programme as broadcast and that his privacy was unwarrantably infringed in both the making and the programme as broadcast. His complaint was upheld and Press TV was fined £100,000. It should also be noted that Press TV had incurred breaches of the broadcasting code prior to this one relating to lack of impartiality in its political programming.

Whilst BSkyB's breaches are not as serious as Press TV's, and that BSkyB's compliance record is far better, that will not necessarily mean that they will be fined any less. When sanctioning any broadcaster, Ofcom must consider proportionality even if they decide to use the £250,000 fining mechanism as opposed to the percentage of qualifying revenue. It goes without saying that BSkyB are giants in comparison to Press TV's UK operation. That could well expose them to far greater sums by way of fine being levied against them.

The main argument to be advanced on behalf of BSkyB has to be the huge public interest that they saw in doing what they did and the material impact they had on the successful prosecutions of those involved. Despite not providing a defence in law and no doubt having similar difficulties in an Ofcom investigation, it must mitigate whatever fine is imposed. Other fairness and privacy sanctions have come about through either wholesale incompetence or a flagrant disregard for the broadcasting code. By contrast, BSkyB were producing a news programme which in their judgement was in the public interest.

Jim Sturman QC

Chris Saad