Friday, December 7, 2012

Would Economist publication of Tribunal e-mails be in breach of Editors Code?

This post looks at whether the publication of the private e-mails of a siting judge involving a case that he is involved in judging might be in breach of the UK Press Complaints Commission Editors Code of Practice with which The Economist magazine has to comply.

It appears from the order given by the tribunal judge yesterday that the situation is as follows. The Economist has in its possession electronic communications of a judge, obtained without his consent, which involve comments he has made about a court case on which he is involved in making a decision.

If the Economist publishes any part of the communication, is this in breach of this Editors Code?

Relevant Provisions of the Code are as follows.
3. Privacyi) Everyone is entitled to respect for his or her private and family life, home, health and correspondence, including digital communications.
ii) Editors will be expected to justify intrusions into any individual's private life without consent. Account will be taken of the complainant's own public disclosures of information. 
10 Clandestine devices and subterfugei) The press must not seek to obtain or publish material acquired by using hidden cameras or clandestine listening devices; or by intercepting private or mobile telephone calls, messages or emails; or by the unauthorised removal of documents or photographs; or by accessing digitally-held private information without consent.
ii) Engaging in misrepresentation or subterfuge, including by agents or intermediaries, can generally be justified only in the public interest and then only when the material cannot be obtained by other means.
Both these clauses are marked with a * which means that breach of them can be justified if it is 'in the public interest.' The Code includes the following clause about the meaning of 'public interest 's relation to these provisions.
1. The public interest includes, but is not confined to:
i) Detecting or exposing crime or serious impropriety.
ii) Protecting public health and safety.
iii) Preventing the public from being misled by an action or statement of an individual or organisation. 
2. There is a public interest in freedom of expression itself. 
3. Whenever the public interest is invoked, the PCC will require editors to demonstrate fully that they reasonably believed that publication, or journalistic activity undertaken with a view to publication, would be in the public interest and how, and with whom, that was established at the time. 
4. The PCC will consider the extent to which material is already in the public domain, or will become so 
5. In cases involving children under 16, editors must demonstrate an exceptional public interest to over-ride the normally paramount interest of the child.
The code makes the assumption that all digital communications are private and their publication is not permitted without the person's consent. Interception of e-mail messages is in not permitted unless it is in the public interest.

Though not stated, the digital communications of a judge would be seen to be particularly protected.

The public interest is defined to include 'serious impropriety'. Not just 'impropriety', it must be serious. Since one assumes that the digital communications of a judge are particularly protected (especially when they involve an ongoing case), one would again assume that the impropriety must be particularly serious.

So whether or not the Economist would be in breach of the Editors code in the publication of these e-mail communication depends upon whether there is a strong enough public interest in their publication, and that depends upon how serious the level of impropriety the published communication shows.

For the Economist to get away with this, I would argue, it would have to be pretty damning. We will just have to wait and see.

The PCC Code does not of course deal with issues relating to contempt of court. Perhaps another post is in order to discuss that.

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