Why the hacking of NightJack matters

The <em>Times</em> finally admits that a blogger's email account was hacked.

The Times of London is regarded as a form of flagship. For a few it is still the "paper of record" for the United Kingdom. And for News International and perhaps for Rupert Murdoch, it shows that they were able to promote a different and more responsible form of journalism than that practiced at its tabloid sister papers, with their grubby phone hacking, private investigators, and intrusive reporting.

But yesterday there was an admission. The Times admitted that a former reporter used computer hacking as part of an investigation. And not only did the reporter hack into a person's private email account, he also told his managers he had done so. Faced with this, the Times published the story based on that investigation even though they were "unclear" as to the role of computer hacking in the reporter's investigation.

You would have thought that the managers would have wanted to know the exact scope of the unauthorised access used in this investigation before they published what was a significant story -- a story that severely infringed someone's privacy. But the Times yesterday told us the managers simply did not know.

The story was about "NightJack", a popular and extremely well-written blog about the reality of police life. It was written under the pseudonym of "Jack Night" and described the goings on in the fictional world of Smallville and Bigtown. No one who read the blog at the time knew where it was set; indeed, part of its power was that it could have been any urban conurbation, and Jack Night could have been any policeman. Even those hostile to the police in general could gain an understanding of the predicaments which police officers routinely faced in their duties.

And so on 22 April 2009 Jack Night won the first Orwell Prize for blogging, an award hitherto given only to journalists and for books. For a blog to win a major literary prize was noteworthy and, naturally, there was particular interest that the author was not known. A young reporter at the Times then decided to see if he could work out the identity of Jack Night.

Was this a valuable journalistic exercise? Should newspapers be devoting resources to exposing the authors of blogs and those using social media more generally? In some circumstances this sort of exposure would be appropriate. For example, at Jack of Kent over a hundred commenters together identified Johann Hari as using "David Rose" as an alias which was used in a systemic exercise over many years to dishonestly promote his own reputation and to maliciously smear those with whom he disagreed.

Was there any similar public interest in exposing Jack Night? There was certainly a public interest in maintaining his blogs written under anonymity: the posts were fascinating and thought-provoking.

The reporter at the time claimed that there were two ways in which public interest was engaged. First he claimed that it could be that the Orwell Prize was duped by a fabricated blogpost. However, this was not convincing, as the Orwell Prize had openly said it had conducted its own checks and was completely satisfied.

The other public interest claimed (in the reporter's witness statement) was that "a policeman was revealing information he had obtained in the course of his police work and was also offering detailed guidance on how to frustrate the attempts of the police, in breach of the police Code of Conduct." (One rather suspects that this articulation of the public interest was informed by legal advice.)

It is not clear if this actually was the case. There is no reason why police officers cannot discuss their work in public, as the legions of police officers now on Twitter show. Jack Night did once post a delightful piece where he advises anyone arrested to do a variety of things, which would actually not be very helpful at all ("show no respect to the legal system or anybody working in it", was one remarkable tip). Some of the posts did feature incidents drawn from real cases, but it was never possible to identify any real incident unless one knew what to look for in an elaborate news archival search.

In fact, there was no public interest in identifying the author of the NightJack blog. The author was not engaged in any exercise of dishonesty or malice, systemic or trivial.

There was instead a public interest in having insightful and carefully-crafted blogs like this. And there was also a public interest in the principle of anonymity and protecting sources. Jack Night was his own source, and one would have hoped journalists and editors at the Times would have valued the importance of protecting anonymity when it is a pre-condition of publishing information in the public interest.

However, the Times decided to out the author against his will. But how did they identify him? The reporter in question provided a witness statement of some 56 paragraphs and with 56 pages of exhibits which showed a brilliant piece of intellectual detective work. Bits of NightJack blogposts were compared with snippets from obscure Ju-Jitsu sites and the Facebook page of the blogger's brother in Houston, Texas. There is also reference to non-internet sources, including the name the blogger used on a list of ex-directory numbers. Everything which could be known about the blogger from any source seemed to have been found out.

So what role did the computer hacking play in this investigation? The Times said yesterday that the role was "unclear" (but also somehow confidently asserted the investigation was "a legitimate process of deduction based on sources and information publicly available on the internet").

Perhaps we will never know. The newspaper is refusing to confirm or deny whether it has retained the relevant records of the incident and their press officer told me today that she has been "advised that we are making no further comments on this matter".

What the Times did decide, however, was that there was no public interest in the computer hacking which occurred. Once it was known that there had been the unauthorised access of an email account there was a disciplinary exercise, and the journalist was given a formal warning. In making that punishment the newspaper decided that there had been no public interest in the hacking.

But what makes this entire incident especially problematic is that before publication the Times had to resist an injunction application by the blogger to retain his privacy. It is not clear whether managers at the Times knew about their reporter's computer hacking before or after the hearing. In any case, it certainly was not told to the Court.

In my opinion, this has two highly significant implications for the High Court case on the injunction. First, the blogger's barrister was forced to concede crucially that the application would proceed on the basis that there had been no breach of any confidentiality or privacy right in the investigation. Second, and even more importantly, the judge determined at paragraph 33 that the blogger had no reasonable expectation of privacy.

Would the Times still have won the case had the computer hacking been disclosed? This is possible, as the judge was persuaded that there was a strong public interest in identifying a blogging police officer. But we do not know. A breach of privacy by means of computer hacking is a serious matter, and it would certainly have been relied upon by the blogger's legal team had it been disclosed to them. It is a general principle of both law and common sense that wrongdoing is not rewarded.

It would appear that a decision must have been made by a senior manager at the Times not to tell the High Court and the defence about what was clearly a relevant and material matter to the injunction case. Even if the computer hacking was not known about on the date of the hearing of 4 June 2009 it was known by the date of the judgment of 17 June 2009, the day before the Times published its story.

So at some point before judgment was handed down the Times must have taken a decision not to disclose its knowledge about the computer hacking. It may well be that there was no strict legal duty to disclose that information -- such disclosure obligations can be technical in scope. But no sensible person would dispute that in a hearing of this kind that it really should have been made available to the judge and the applicant. There had been computer hacking in the investigation to uncover the blogger's identity, and the Times knew about it and said and did nothing about it.

And no one would ever have known had it not been for the Leveson inquiry. Even then, the Times played it down and it was left to others to make a connection. The newspaper's managers realised something wrong had happened but they never told or apologised to the blogger whose email account was hacked.

Overall, the hacking of NightJack matters not only because it tells us something about dark journalistic practices but that such practices are rarely willingly or openly acknowledged when they occur, even at flagship titles like the Times. Computer hacking was used, a person's privacy was invaded, a court was not told, but the Times published anyway.

 

David Allen Green is legal correspondent of the New Statesman and author of the Jack of Kent blog.

 

David Allen Green is legal correspondent of the New Statesman and author of the Jack of Kent blog.

His legal journalism has included popularising the Simon Singh libel case and discrediting the Julian Assange myths about his extradition case.  His uncovering of the Nightjack email hack by the Times was described as "masterly analysis" by Lord Justice Leveson.

David is also a solicitor and was successful in the "Twitterjoketrial" appeal at the High Court.

(Nothing on this blog constitutes legal advice.)

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Inside the progressive alliance that beat Zac Goldsmith in Richmond

Frantic phone calls, hundreds of volunteers, and Labour MPs constrained by their party. 

Politics for a progressive has been gloomy for a long time. On Thursday, in Richmond Park of all places, there was a ray of light. Progressive parties (at least some of them) and ordinary voters combined to beat Ukip, the Tories and their "hard Brexit, soft racist" candidate.

It didn’t happen by accident. Let's be clear, the Liberal Democrats do by-elections really well. Their activists flood in, and good luck to them. But Richmond Park was too big a mountain for even their focused efforts. No, the narrow win was also down to the fast growing idea of a progressive alliance. 

The progressive alliance is both a defensive and offensive move. It recognises the tactical weakness of progressives under first past the post – a system the Tories and their press know how to game. With progressive forces spilt between Labour, Liberal Democrats, Greens, the SNP, Plaid Cymru, the Women’s Equality Party and more – there is no choice but to co-operate, bring in proportional representation and then a whole new political world begins.

This move opens up the wider strategy – to end the domination of the City, and right-wing newspapers like the Mail, so Britain can have a real debate and make real choices about what sort of economy and society it wants. A pipedream? Well, maybe. But last night the fuse was lit in Richmond Park. The progressive alliance can work.

Months before the by-election, the pressure group for a progressive alliance that I chair, Compass, the Greens, and some Labour, Liberal Democrat and SNP MPs and activists, began considering this. The alternative after Brexit was staring into the void.

Then the Tory MP Zac Goldsmith stepped down over Heathrow. To be fair, he had pledged to do this, and we should have been better prepared. In the event, urgent behind-the-scenes calls were made between the Greens and the Liberal Democrats. Compass acted as the safe house. The Greens, wonderfully, clung onto democracy – the local party had to decide. And they decided to stand up for a new politics. Andree Frieze would have been the Green candidate, and enjoyed her moment in the autumn sun. She and her party turned it down for a greater good. So did the Women’s Equality Party.

Meanwhile, what about Labour? Last time, they came a distant third. Again the phones were hit and meetings held. There was growing support not to stand. But what would they get back from the Liberal Democrats, and what did the rules say about not standing? It was getting close to the wire. I spent an hour after midnight, in the freezing cold of Aberdeen, on the phone to a sympathetic Labour MP trying to work out what the party rule book said before the selection meeting.

At the meeting, I am told, a move was made from the floor not to select. The London regional official ruled it out of order and said a candidate would be imposed if they didn’t select. Some members walked out at this point. Where was the new kinder, gentler politics? Where was membership democracy? Fast forward to last night, and the Labour candidate got less votes than the party has members.

The idea of a progressive alliance in Richmond was then cemented in a draughty church hall on the first Tuesday of the campaign – the Unitarian Church of course. Within 48 hours notice, 200 local activist of all parties and none had come together to hear the case for a progressive alliance. Both the Greens and Compass produced literature to make the case for voting for the best-placed progressive candidate. The Liberal Democrats wove their by-election magic. And together we won.

It’s a small victory – but it shows what is possible. Labour is going to have to think very hard whether it wants to stay outside of this, when so many MPs and members see it as common sense. The lurch to the right has to be stopped – a progressive alliance, in which Labour is the biggest tent in the campsite, is the only hope.

In the New Year, the Progressive Alliance will be officially launched with a steering committee, website and activists tool-kit. There will also be a trained by-election hit squad, manifestos of ideas and alliances build locally and across civil society.

There are lots of problems that lie ahead - Labour tribalism, the 52 per cent versus the 48 per cent, Scottish independence and the rest. But there were lots of problems in Richmond Park, and we overcame them. And you know, working together felt good – it felt like the future. The Tories, Ukip and Arron Banks want a different future – a regressive alliance. We have to do better than them. On Thursday, we showed we could.

Could the progressive alliance be the start of the new politics we have all hoped for?

Neal Lawson is the Chair of Compass, the pressure group for the progressive alliance.

Neal Lawson is chair of the pressure group Compass, which brings together progressives from all parties and none. His views on internal Labour matters are personal ones.