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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The DUP scored £1bn for just ten votes – so why be optimistic about our EU deal?

By March 2019, we’re supposed to have renegotiated 40 years of laws and treaties with 27 ­countries.

If Theresa May’s government negotiates with the European Union as well as it negotiated with the Democratic Unionist Party, it’s time to cross your fingers and desperately hope you have a secret ­Italian grandfather. After all, you’ll be wanting another passport when all this is over.

The Northern Irish party has played an absolute blinder, securing not only £1bn in extra funding for the region, but ensuring that the cash is handed over even if the power-sharing agreement or its Westminster confidence-and-supply arrangement fails.

At one point during the negotiations, the DUP turned their phones off for 36 hours. (Who in Westminster knew it was physically possible for a human being to do this?) Soon after, needling briefings emerged in the media that they were also talking to Labour and the Lib Dems. In the end, they’ve secured a deal where they support the government and get the Short money available only to opposition parties. I’m surprised Arlene Foster didn’t ask for a few of the nicer chairs in Downing Street on her way out.

How did this happen? When I talked to Sam McBride of the Belfast News Letter for a BBC radio programme days before the pact was announced, he pointed out that the DUP are far more used to this kind of rough and tumble than the Conservatives. Northern Irish politics is defined by deal-making, and the DUP need no reminder of what can happen to minnows in a multiparty system if they don’t convince their voters of their effectiveness.

On 8 June, the DUP and Sinn Fein squeezed out Northern Ireland’s smaller parties, such as the SDLP and the Alliance, from the region’s Westminster seats. (McBride also speculated on the possibility of trouble ahead for Sinn Fein, which ran its campaign on the premise that “abstentionism works”. What happens if an unpopular Commons vote passes that could have been defeated by its seven MPs?)

The DUP’s involvement in passing government bills, and the price the party has extracted for doing so, are truly transformative to British politics – not least for the public discussion about austerity. That turns out to be, as we suspected all along, a political rather than an economic choice. As such, it becomes much harder to defend.

Even worse for the government, southern Europe is no longer a basket case it can point to when it wants to scare us away from borrowing more. The structural problems of the eurozone haven’t gone away, but they have receded to the point where domestic voters won’t see them as a cautionary tale.

It is notable that the Conservatives barely bothered to defend their economic record during the election campaign, preferring to focus on Jeremy Corbyn’s spending plans. In doing so, they forgot that many of those who voted Leave last year – and who were confidently expected to “come home” to the Conservatives – did so because they wanted £350m a week for the NHS. The Tories dropped the Cameron-era argument of a “long-term economic plan” that necessitated short-term sacrifices. They assumed that austerity was the New Normal.

However, the £1bn the government has just found down the back of the sofa debunks that, and makes Conservative spending decisions for the rest of the parliament fraught. With such a slim majority, even a small backbench rebellion – certainly no bigger than the one that was brewing over tax-credit cuts until George Osborne relen­ted – could derail the Budget.

One of the worst points of Theresa May’s election campaign was on the BBC ­Question Time special, when she struggled to tell a nurse why her pay had risen so little since 2009. “There isn’t a magic money tree that we can shake that suddenly provides for everything that people want,” the Prime Minister admonished. Except, of course, there is a magic money tree, and May has just given it a damn good shake and scrumped all the cash-apples that fell from it.

That short-term gain will store up long-term pain, if the opposition parties are canny enough to exploit it. In the 2015 election, the claim that the SNP would demand bungs from Ed Miliband to prop up his government was a powerful argument to voters in England and Wales that they should vote Conservative. Why should their hospitals and schools be left to moulder while the streets of Paisley were paved in gold?

The attack also worked because it was a proxy for concerns about Miliband’s weakness as a leader. Well, it’s hard to think of a prime minister in a weaker position than May is right now. The next election campaign will make brutal use of this.

Northern Ireland might deserve a greater wodge of redistribution than the Barnett formula already delivers – it has lower life expectancy, wages and productivity than the British average – but the squalid way the money has been delivered will haunt the Tories. It also endangers one of the Conservatives’ crucial offers to their base: that they are the custodians of “sound money” and “living within our means”.

Labour, however, has not yet quite calibrated its response to the DUP’s new-found influence. Its early attacks focused on the party’s social conservatism, pointing out that it is resolutely anti-abortion and has repeatedly blocked the extension of equal marriage through “petitions of concern” at Stormont.

This tub-thumping might have fired up Labour’s socially progressive supporters in the rest of the UK, but it alienated some in Northern Ireland who resent their politicians being seen as fundamentalist yokels. (Only they get to call the DUP that: not Londoners who, until three weeks ago, thought Arlene Foster was the judge who got sacked from Strictly Come Dancing.)

And remember: all this was to get just ten MPs onside. By March 2019, we’re supposed to have renegotiated 40 years of legislation and treaties with 27 other European ­countries. Ha. Hahaha. Hahaha.

Helen Lewis is deputy editor of the New Statesman. She has presented BBC Radio 4’s Week in Westminster and is a regular panellist on BBC1’s Sunday Politics.

This article first appeared in the 29 June 2017 issue of the New Statesman, The Brexit plague

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