Sky handed paddle by Ofcom in Canoe Man privacy decision

Ofcom has found that Sky News did not breach the Broadcasting Code in broadcasting material obtained by hacking the email accounts of John and Anne Darwin. The Darwins came to fame in 2008 when they were convicted of fraud-related offences in connection with Mr Darwin’s faking his own death in 2002, after which he became popularly known in the media as the “Canoe Man”.

Although Sky News committed an offence by hacking the accounts, Ofcom decided that freedom of expression outweighed the Darwins’ expectation of privacy.  While the decision lends important support to serious investigative journalism, it should be considered in detail, as it turns on exceptional facts.

Background

Rule 8.1 of Ofcom’s Broadcasting Code requires that: “Any infringement of privacy in programmes, or in connection with obtaining material included in programmes, must be warranted.”

On 21 March 2002, John Darwin faked his own death at sea in a canoeing accident.  His wife, Anne Darwin, subsequently claimed sums of around £250,000 on life insurance and pension policies.  These monies were subsequently used by the Darwins to start a new life in Panama where, in Mr Darwin’s words, they became “filthy rich gringos”.  In January 2008, Mr Darwin confessed to faking his own death and was sentenced, along with Mrs Darwin, to more than six years in prison.  The prosecution’s case had used the emails hacked by Sky News in order to convict Mrs Darwin, who, unlike her husband, had defended herself at trial on the basis of marital coercion.  Sky News subsequently used the material that it had hacked in its news coverage and special reports.

Although Ofcom had received no complaints from the Darwins in relation to Sky News’ conduct, it decided to investigate the matter, invoking its general duty under section 3 of the Communications Act 2003 to secure the application of standards that provide adequate protection to members of the public from unfair treatment and unwarranted infringements of privacy.

Sky News provided a detailed response to Ofcom that it considered carefully in its decision, which was published on 1 July 2013.

Obtaining the material

Reasonable expectation of privacy

Ofcom first had to decide whether there had been an unwarranted infringement in relation to the hacking of the email accounts.  It considered Practices 8.3, 8.5 and 8.9 of the Broadcasting Code, which provide that:

•	when people are caught up in events which are covered by the news, they still have a right to privacy in both the making and broadcast of the programme unless it is warranted to infringe it;
•	any infringement in the making of a programme should be with the person’s consent or be otherwise warranted; and
•	the means of obtaining material must be proportionate in all the circumstances and in particular to the subject matter of the programme.

Ofcom considered the extent to which the Darwins had a legitimate expectation of privacy in relation to the emails that had been hacked.  Under the Broadcasting Code, “legitimate expectation of privacy” means that individuals under investigation or in the public eye retain the right to a private life, although private behaviour can raise issues of legitimate public interest.  Ofcom considered that an individual’s personal email accounts and the related correspondence could reasonably be considered as being private, and that such individual would have a reasonable expectation that those emails would not be accessed by another person without the individual’s authorisation.  Such a finding is not unexpected. 

Ofcom also noted that:

•	hacking of email accounts is a criminal offence under section 1 of the Computer Misuse Act 1990;
•	the Darwins’ email accounts were accessed by Sky News’ reporter, Mr Tubb, in the course of his own investigation into the circumstances surrounding the Darwin’s case while the Darwins were subject to an ongoing police investigation and criminal prosecution; and
•	had the police wished to do so, they could have investigated the email accounts in question themselves by obtaining the relevant warrants and authorisation.

In the circumstances, Ofcom considered that the Darwins had a reasonable expectation of privacy in relation to their email correspondence, and that it would not be hacked in the manner that it was.

Public interest

Ofcom then considered whether there was a public interest in permitting such an infringement of privacy.  It accepted Mr Tubb’s reason that he had hacked the accounts in order to reveal a crime, and that this constituted a public-interest reason for interfering with the Darwins’ expectation of privacy.  Ofcom took account of the following factors:

•	Mr Tubb had credible grounds for his suspicion that the first email account he accessed (the so-called “John Jones” account) related to Mr Darwin.  This was because he had learned from the police in December 2007 that Mr Darwin had used such a pseudonym, and this had been confirmed via a number of internet searches that he had conducted.  Having accessed that account, Mr Tubb deduced that there were other accounts used by the couple.
•	He also had strong grounds to believe that the email accounts were likely to contain messages between Mr and Mrs Darwin during the time at which Mr Darwin was presumed dead, which would undermine Mrs Darwin’s denial of complicity in the deception.  The existence of an email account used by Mr Darwin only after his disappearance, coupled with his subsequent admission of guilt, meant that the content of the email accounts were likely to be relevant to the question of Mrs Darwin’s involvement in the fraud.
•	The emails became even more relevant when sources close to the prosecution told Mr Tubb in 2008 that Mrs Darwin proposed to run a defence of marital coercion to the charges that she faced.  When Ofcom asked Sky News to disclose further information about such “sources”, it declined to do so, on the basis that the disclosure of journalistic sources is protected by Article 10 of the European Convention on Human Rights (ECHR).
•	Mr Tubb had been informed by a source close to the prosecution that the email accounts would not be investigated independently by the police.  Ofcom accepted this.

In the circumstances, Ofcom considered that the journalist had a genuine public interest in seeking to obtain material relating to the commission of a serious criminal offence that could rebut Mrs Darwin’s defence of marital coercion.

Balancing exercise

Ofcom then went on to consider whether the public interest outweighed the Darwins’ legitimate expectation of privacy.  It noted the following factors:

•	Ordinarily, in the context of Ofcom’s statutory duty relating to unwarranted infringements of privacy, Ofcom would be unlikely to consider it appropriate for a broadcaster to allow its journalists to hack private email accounts and then to disclose email correspondence without permission from the email account holders.  Taking into account the fact that such improper access is a criminal offence, the threshold for demonstrating that the means used by Sky News were warranted was a high one.
•	In particular, the hacking had taken place while a police investigation and criminal prosecution were ongoing.  There was no suggestion that Mr Tubb had been investigating a failure by either the police or the criminal prosecution.  There were no formal procedures in place for authorisation for Mr Tubb to carry out such hacking by senior members of the Sky News team.  This was a concern, but the Darwins’ case had attracted considerable public attention, and there was a genuine public interest in Sky News’ investigation.
•	Although the Director of Public Prosecutions had published the “Guidelines for prosecutors in assessing the public interest in cases affecting the media” after the hacking had taken place, the Guidelines were useful in this case (albeit prepared to assist prosecutors, rather than to determine breaches of the Broadcasting Code).  In particular, even where there is sufficient evidence to prosecute a person who has been involved in hacking, it should be considered whether:

	(a)      prosecution is required in the public interest; and
	(b)      the public interest served by the conduct in question outweighs the overall criminality.

Should the answer to (b) be “yes”, it is likely that the prosecution will not be in the public interest.  Conduct that is capable of disclosing a criminal offence is an example of conduct that is capable of serving the public interest, as was the case here.

•

The criminal offence under section 1 of the Computer Misuse Act 1990 does not carry an express public-interest defence.

•

On 18 March 2013, the Crown Prosecution Service announced its decision not to prosecute Mr Tubb for hacking the Darwins’ email accounts, because the evidence indicated that the public interest served by the conduct outweighed the potential overall criminality (should an offence be proven).  The CPS had taken into account the fact that the emails had been hacked with a view to showing that a criminal offence had been committed, and that a number of those emails were subsequently used by the prosecution at the criminal trial of Mrs Darwin.

Ofcom therefore considered that the purpose of revealing or detecting crime is an important reason why it might be appropriate to infringe a person’s legitimate expectation of privacy.  In this case, the emails were hacked in circumstances where there was a real prospect that the relevant evidence would go unnoticed by the police.  Accordingly, Ofcom had regard to the eventual outcome of the hacking, namely that the use of the emails by the prosecution resulted in the collapse of Mrs Darwin’s defence of marital coercion.  In the circumstances, it was plainly unrealistic to expect to receive consent from the Darwins in order to access such email accounts.

Ofcom also noted that Mr Tubb has secured approval from Sky News’ Deputy Head of News and Managing Editor before accessing the accounts in question.  Once Mr Tubb had obtained the emails, he had passed them on to the police, despite the risk that this in itself could have triggered proceedings against Mr Tubb.

Conclusion on obtaining the material

Overall, therefore, Ofcom concluded that Sky News’ right to freedom of expression outweighed the Darwins’ legitimate expectation of privacy.  It noted, however, that the broadcaster’s conduct was at the boundaries of what was appropriate.  Nevertheless, it considered that there was no unwarranted infringement of the Darwins’ privacy in relation to obtaining the material. 

Broadcasting the material

Ofcom made the same decision, for the same reasons, in relation to Sky News’ broadcast of the emails and related material following the end of Mrs Darwin’s criminal trial.

Comment

Even in the post-Leveson era, this decision shows that serious investigative journalism will not be curtailed when the public interest is sufficiently strong, despite the unlawful hacking of individuals’ email accounts. 

Clearly, however, Ofcom based its decision on the special and particular circumstances of the case.  Perhaps the key question for Ofcom was the basis for Mr Tubb’s understanding that the police were not themselves going to attempt to access the relevant email accounts.  Sky News’ explanation was that this information came from a source close to the prosecution.  Unfortunately, no further detail was provided to Ofcom, as it was referred to the importance of protecting journalistic sources consistent with Article 10 of the ECHR.

So, while this decision usefully informs the outer limits of infringing conduct that can be warranted, it also demonstrates that the bar is set high.

Tom Iverson
Article written for Entertainment Law Review.