I watched Richard Thomas’ appearance at the Leveson Inquiry this time list week in sub-optimal conditions. Having arranged a £1000 car repair on the same morning as a dentist appointment, I was wiling away the time using the free WiFi at a Wetherspoons, surrounded by grim-faced men who see 9am as Guinness O’Clock. Normally, I like a drink as much as the next man, but when the next man sinks three pints before Lorraine Kelly has left the building, even I feel like an amateur. Not even the absurd £4.00 breakfast and cheaper-than-Starbucks tea cheered me up. Even so, Thomas’s performance (if that’s the right word) was the most depressing spectacle I have seen since the last time James Murdoch stared through his Joke Shop specs and denied he knew that the News of the World existed.
To paraphrase, Thomas’ case is that the legal advice he received contained a clear message that pursuing rogue journalists would be too costly and / or difficult. But his view on whether the ICO should have done so – despite insisting that he did not develop a policy of leaving them be – is as follows:
“I have to say, and maybe this is with hindsight, but perhaps thank goodness we did not prosecute the journalists. The impact for the office would have been very, very demanding indeed. I don’t know when this was or at what point this was, but probably around about 2007, I can recall a conversation along the lines of somebody saying, “Thank God we didn’t take the journalists to court. They’d have gone all the way to Strasbourg.” In other words, they would have challenged any action we would have taken, we would have gone right to Strasbourg, the Court of Human Rights, Article issues coming in.”
Mr Thomas was keen to refute former investigator Alec Owens’ claim that his deputy, Francis Aldhouse, said “We can’t take them [the press] on, they’re too big for us.” Neither Thomas or Aldhouse remembered this statement being uttered (equally neither stated for certain that it had not been said). However, how else might one fairly paraphrase that big quote above? Isn’t “We can’t take them on, they’re too big for us” a pretty fair summary of Thomas’s position? Thomas went to the Press Complaints Commission and asked them to deal with it. The ICO reported diligently to Parliament and asked them to deal with it. Under Richard Thomas’ Information Commissioner’s Office did not take the rogue journalists on directly.
Regardless of whether Owens’ account of what Francis Aldhouse said is accurate or not, it encapsulates a truth about Thomas’ approach to taking action on press misbehaviour. Incidentally, Thomas’ ungallant efforts to bring personal data about Owens’ disciplinary record and unhappy departure into both his witness statements and his evidence doesn’t in itself make the ex-cop’s forthright testimony untrue. One can only assume he had a Data Protection justification for using the data in this way. Fundamentally, those of us who weren’t in the room have to listen to the testimony of the three men, and decide whom we find more convincing.
Enforcement action should not only be taken against data controllers who lack the inclination or resources to push back – the mighty are not looking on with despair at the current run of fines against local councils. Even the admirable and valuable Consulting Association case had at its centre one man running a wholly indefensible and surreptitious blacklist; the construction companies who used it were collateral damage. Richard Thomas went to Leveson last week and said “thank goodness” that he didn’t go after a sector that would have fought him. Instead, he set out his belief that the ICO should primarily exist to promote good practice.
That’s just not enough for a small number of data controllers. The phone hacking scandal shows that commercial imperatives can sometimes trump not only the law, but also basic morality. If you want evidence for this, look no further than Kelvin McKenzie (http://tinyurl.com/84hy8uc), who wants an apology for Rupert Murdoch because although the NOTW hacked into a murdered girl’s phone messages, they may not have deleted them. Most organisations, in every sector, will follow good practice. Some will need a hand, and others will need a nudge. A few will need a kick. I’ve previously blogged that we probably don’t want a Commissioner who tilts at every windmill; watching Thomas’ rather hesitant, diffident evidence, we equally don’t want someone so relieved he didn’t do something so important.