Not now, Brian, we’re busy

Imagine that you are employed by a mobile phone network. Somebody working for a claims management firm approaches you, offering a large sum of money to steal the customer database, especially the mobile numbers. They want to send PPI claim text messages to all of the people on the list. You download the customer data, sell it, and pocket the proceeds. Having got it, you decide to sell the list to a rival mobile company. You put the information on a disc, and flog it on eBay. The people who send the PPI texts could receive a Civil Monetary Penalty of up to £500,000 as they do not have consent. But even if you are caught and prosecuted, the worst that can happen is to the thief is a maximum £5000 fine. The offence is not recordable, so you will not end up with a criminal record. The chances of being caught are slim, but the deterrent is even smaller.

Imagine if the government had long ago realised that the fines were not enough, and had taken the trouble to amend the law to punish white-collar data thieves with up to two years in jail. But around the time the law was being changed, the Prime Minister of the day met with representatives of a special interest group. Despite the fact that the new punishment was not intended to affect this group and detailed measures had been taken to protect them, the lobbyists were not satisfied, and they demanded that the prison sentence be held back. Even though the chances of their industry being affected by the change were very small, they could not accept even the slightest possibility that any one of their number could even face the possibility of a night in a cell.

If anyone else had held the country to ransom and prevented changes to a law that were entirely in the public interest, the press would be up in arms, pointing the finger with relish. If unions, lawyers, doctors or social workers – indeed, any regulated profession – expected crimes to have puny, worthless punishments just in case one of their own was imperilled, the Daily Mail would shout their condemnation from the highest rooftop.

And yet, we’re supposed to swallow the narcissist tide of special pleading from journalists, all in the name of press freedom, and tolerate a rampant black market in personal data in order to protect them. The Information Commissioner is obviously desperate to tackle it, but the results in court are often ludicrous. The man who received stolen medical data from his girlfriend to use for personal injury claims was fined £1050. He memorably boasted after the verdict “We’re going to Bella Italia after this and I’m having a fillet steak”. A bank worker stole information from her employer about the victim of a sex attack committed by her husband. Her punishment was an £800 fine. Whatever you think about the publication of the BNP member address list, a fine of £200 for endangering life (and probably risking mass misidentification) is almost satire.

This is the world that journalists expect us all to tolerate so that they are safe. Gone is ‘publish and be damned’, to be replaced with ‘publish and be insulated from the consequences’. A number of Parliamentary committees have called for the sentence to be enabled, and the Information Commissioner himself is routinely excoriating about a system where the punishments for data theft are so derisory. In the recent past, the constant refrain from Government has been: wait for Leveson. We cannot pre-empt Leveson.

And now, Leveson has spoken, and regardless of what you think about the doomed suggestion of statutory underpinning and regulation, the data theft issue is very simple. Leveson argues for the prison sentence to be made live. When drafted, the Data Protection Act contained a public interest defence, which in my head should be enough to reassure any journalist. Even if accused of outright data theft, the public interest that press freedom surely exists solely to serve would shield the righteous hack from unjustified punishment. When the last Labour Government recognised the failure of the current system, they amended the DPA still further, making clear that all a journalist needs is a ‘reasonable belief’ that they are acting in the public interest to escape prosecution. Even though the prison sentence was not brought into force, this additional defence was.

At this point, before saying something contentious, the sensible writer includes a few sentences about how important they think press freedom and journalistic endeavour are. The secret hope of every blogger is probably that their sublime writing will catch the eye of a sympathetic editor and they will be catapulted from the amateur sphere and be given a weekly column, or at least a spot of freelance at the Guardian. Biting that hand that hasn’t even picked up the food is surely blogger suicide. I can’t be arsed. I honestly don’t want to live in a country where journalists get locked up for doing good work, but I think I live in a country where newspapers can get mixed up in axe murders with impunity, so I doubt that Fleet Street will crumble if I fail to invoke the spirit of Voltaire before suggesting something that hacks might see as a check on their activities. They have David Cameron, Michael Gove and Boris Johnson and that’s all they need.

Besides, I come to exempt journalists, not to bury them. I think that the only way that the data theft problem can be solved successfully is if journalists are removed from the equation. Lord Justice Leveson has proposed significant amendments to the S32 exemption from DPA, which allows those processing personal data for journalistic, artistic and literary purposes to escape virtually all of the Data Protection principles, apart from security, as long as this is ‘necessary’. I think Sir Brian’s ideas don’t address the bigger picture, and should be binned. We know that the press will never support any infringement of their liberties, whatever the justification, and they will monster anyone who supports such a plan. Meanwhile, the possibility of a prison sentence is likely to have a much better deterrent effect on office workers, nurses and cops tempted to steal or suborn others to steal personal data than a paltry fine and no record. If newspapers feel that they face this threat too, scaremongering about investigative journalists (rather than phone hackers and dumpster divers) ending up behind bars for speaking truth to power (rather than figuratively or actually smelling celebrity knickers) will continue its harmful knock-on effect, and politicians will continue to defer to the power of the press.

S28 of the Data Protection Act gives those using personal data for the purposes of national security a total exemption from its requirements. Rather than continue to have the debate on data theft railroaded by a sanctimonious sideshow, let’s extend that approach to journalists. Give them the ‘get out of jail free card’ they demand and a few act like they already have, and stop our personal data from being plundered everywhere else.

 

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