By Tim Crook

Originally published in Comparative Media Law and Ethics The very idea of a national newspaper in the United Kingdom hiring private detectives to spy on the families of lawyers representing clients litigating against them is beyond belief. Yet this is the latest revelation in the Hackgate scandal,  and has been confirmed and described as ‘inappropriate’ by the now defunct News of the World’s parent company News International. ‘Inappropriate’ is not a word that comes to mind. Last night on the BBC’s Newsnight programme, the tenacious and dogged solicitor Mark Lewis, said that the surveillance of his teenage daughter was ‘sick’. He had never known of any previous case where sides engaged in legal conflict had gone this far. He rather charmingly described it as ‘playing the man and not the ball’- an analogy to soccer or rugby and the kind of language exercising dignified restraint in endeavouring to define and describe the unacceptable and outrageous. It is  not just one solicitor being targetted by an apparently MI5 trained and former police officer. The investigator is also reported to have secretly videoed the media law solicitor Charlotte Harris. The Guardian‘s Nick Davies writes ‘Evidence suggests it was part of an attempt to gather evidence for false smears about their private lives.’ The story was there to be got just at the end of the September evidence given by the NOW’s former in house media lawyer Tom Crone before a House of Commons select committee. The Labour MP Tom Watson asked if he had seen dossiers on the private lives of lawyers representing people suing over phone hacking and Mr Crone replied:

I saw one thing in relation to two of the lawyers, except I do not know whether it was a dossier. It involves their private lives.

Just how much worse for British journalists is Hackgate going to get? Have we not had enough unbearable tipping points? The unlawful hacking of a child abduction and murder victim, victims of terrorism, and the apparent industrialised snooping of thousands of individuals over many years? But the former chief executive of News International Rebekah Brooks did tell NOW journalists on the day they heard they were losing their jobs that in time they would understand why the newspaper had to be shut down. Her words are beginning to chill the soul. What is the true level of toxicity that she was talking about? This latest revelation comes hard on the heels of the news that the number of possible phone hacking victims is almost 5,800 since evidence has emerged that the News of the World’s private investigator Glenn Mulcaire may have targeted 2,000 more people than previously acknowledged. The appalling question no doubt being pursued by the Metropolitan Police and Leveson public enquiry is if this were just one PI being employed by one national newspaper, were the practice wider, how far does the spying and snooping go? And the most significant aspect of the story reported yesterday by the Guardian and Newsnight is that the surveillance on Mr Lewis and Ms Harris was commissioned and occured in the last 18 months- in the years 2010 and 2011. Hackgate is and probably never was an historical phenomenon sullying and catastrophically destroying the reputation of journalism and journalists. It is worryingly and disturbingly of the here and now. Just exactly how many Private Investigators are there out there being employed by British news and media organisations to follow people, to sneak and snoop into their private lives? The ethics are being acutely debated. The issue of legality is for lawyers, the police and the courts. It is becoming apparent that any decision by any media organisation to employ a Private Investigator raises the obvious question, should the decision and motivation be legal and ethical, why not use your own journalists? And while the Leveson enquiry is preoccupied with the issue of regulating the press, how effective and serious is the regulation of private security? Just where do intelligence, police and state investigators, trained and with access to the skills and resources that give them an immunity and power equivalent to Geroge Orwell’s Big Brother, go after they retire or decide to change careers? I am told it is a multi-billion pound industry. But surely it is not being funded solely by a shabby and pathetic market of media organisations who do not have the honesty, and presumably the talent available, to do the work themselves? It seems there may well be significant loopholes and gaps in the remit of the UK’s Security Industry Authority. A Home Office web site explains:

The Private Security Industry Act 2001 (as amended) allows for SIA licensing of private investigation activities, security consultants and precognition agents. However, we do not currently license these activities.

The SIA is limited to the compulsory licensing of individuals working in specific sectors of the industry. Section 3 and Schedule 2 of the Private Security Industry Act 2001 sets out a remit that covers a handful of categories from ‘manned guarding’ to ‘public space surveillance’ otherwise known to all of us as CCTV. And it also included ‘vehicle immobolisers’. We know these as car clampers. The site is woeful in its explanation of how the industry is monitored and disciplined. Wikipedia vaguely refers to the authority requiring SIA-endorsed qualifications before licensing firms and individuals. There is  no apparent evidence of any code of ethics, though members of the public can report illegal activity.  If you can ever identify the Private Investigator following you, I would presume the SIA would be able to confirm whether he/she is actually licenced or required to be licenced. The authority seems limited to enforcing a fairly narrow range of criminal offences where the prosecution and maximum penalty is a fine of £5,000 or 6 months imprisonment under summary (magistrates courts) jurisdiction. And the punishments handed out up until October of this year range from an absolute discharge to a community order and at most a fine of £13,000. But the site then states:

In October 2010 the Government announced that the Security Industry Authority would no longer be an NDPB (Non-Departmental Public Body) and there will be a phased transition to a new regulatory regime for the private security industry. This means that the SIA will change from its current set up, but that the private security industry throughout the UK will continue to be regulated.

You may well ask what on earth does that mean? I endeavoured to read an SIA factsheet and was non the wiser, apart from getting the impression that the SIA would cease being a direct state regulator and become an ‘independent’ body with the private security industry itself more involved in its own regulation. And there are associations for the security industry. For example the British Security Industry Association (BSIA). I could not find a code of ethics link on its home page.  If it is there I apologise for missing it. I also found an Association of Security Consultants (ASC) and again struggled to find any link to a code of ethics, though I was rather intrigued to learn that it was inaugurating an annual prize to members- the ‘Imbert Prize’  that ‘encourages the development of ideas for the advancement of risk and security management in the UK.’ A little digging and searching of the ASC site revealed the declaration that: ‘Members are subject to a Code of Conduct which regulates their activities and emphasises client confidentiality and discretion.’ In the end my difficulty in finding the ASC’s ‘code of conduct’ had more to do with how short and little it actually is. It is in fact on the ‘about the ASC page’  and marks a commitment to a mere 6 obligations or duties:

1. To maintain a high standard of work and to act with integrity and impartiality solely in the interests of the client. 2. To maintain confidentiality of information specific to the business of the client. 3. To accept only those assignments which we consider ourselves competent to carry out personally and/or with the assistance of others who in our judgement are similarly competent and who comply with the requirements of this Code of Conduct. 4. To disclose to the client any personal or financial interest, or any other significant circumstances that might involve a conflict of interest. 5. To agree with the client in advance, the objectives and scope of the assignment, the fees or fee basis and other terms and conditions. In the event of subsequent changes to the original brief, to submit a revised proposal to the client for his acceptance. 6. To maintain effective communication with the client and to submit appropriate reports and documents.

When you compare this to the codes of ethics applied by the Press Complaints Commission, Ofcom, the BBC or even the National Union of Journalists, you can begin to wonder how tempting it is to hire the services of private investigators rather than trained and professional journalists to work in the twilight zone of information gathering. Any ethicist quickly scanning the six principles enshrined in the ASC’s code can recognise the problems with it. There appears to be no recognition or consideration of any duties and responsibilities relating to anyone apart from ‘the client.’ A quick googling of amazon.co.uk on books and manuals about private investigators yielded 11,506 results and opened up the following list of titles that arguably speaks for itself: ‘Honeytraps and Sexpionage: Confessions of a Private Investigator’, ‘The Private Investigator’s Handbook: The Do-It-Yourself Guide to Protect Yourself, Get Justice, or Get Even’, and ‘The Private Investigator’s Handbook: How to find out almost anything about almost anybody and prevent them from knowing anything about you.’ Where next with Hackgate- a scandal resonating throughout the world? All I can say is hold onto your seats. It is going to be a bumpy ride. Rupert Murdoch’s son, James, appears before the House of Commons Select Committee on culture, media and sport on Thursday 10th November.  He will have to face awkward questions about the extent of corporate executive knowledge of the culture and systems of alleged criminality operating at News Group Newspapers while he was in charge. I would certainly recommend watching BBC 2′s Newsnight this evening (Tuesday 8th November) as its reporter Richard Watson has more to reveal about News International’s surveillance activities.