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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Andy Burnham and Sadiq Khan are both slippery self-mythologisers – so why do we rate one more than the other?

Their obsessions with their childhoods have both become punchlines; but one of these jokes, it feels to me, is told with a lot more affection than the other.

Andy Burnham is a man whose policies and opinions seem to owe more to political expediency than they do to belief. He bangs on to the point of tedium about his own class, background and interests. As a result he’s widely seen as an unprincipled flip-flopper.

Sadiq Khan is a man whose policies and opinions seem to owe more to political expediency than they do to belief. He bangs on to the point of tedium about his own class, background and interests. As a result he’s the hugely popular mayor of London, the voice of those who’d be proud to think of themselves as the metropolitan liberal elite, and is even talked of as a possible future leader of the Labour party.

Oh, and also they were both born in 1970. So that’s a thing they have in common, too.

Why it is this approach to politics should have worked so much better for the mayor of London than the would-be mayor of Manchester is something I’ve been trying to work out for a while. There are definite parallels between Burnham’s attempts to present himself as a normal northern bloke who likes normal things like football, and Sadiq’s endless reminders that he’s a sarf London geezer whose dad drove a bus. They’ve both become punchlines; but one of these jokes, it feels to me, is told with a lot more affection than the other.

And yes, Burnham apparent tendency to switch sides, on everything from NHS privatisation to the 2015 welfare vote to the leadership of Jeremy Corbyn, has given him a reputation for slipperiness. But Sadiq’s core campaign pledge was to freeze London transport fares; everyone said it was nonsense, and true to form it was, and you’d be hard pressed to find an observer who thought this an atypical lapse on the mayor’s part. (Khan, too, has switched sides on the matter of Jeremy Corbyn.)

 And yet, he seems to get away with this, in a way that Burnham doesn’t. His low-level duplicity is factored in, and it’s hard to judge him for it because, well, it’s just what he’s like, isn’t it? For a long time, the Tory leadership’s line on London’s last mayor was “Boris is Boris”, meaning, look, we don’t trust him either, but what you gonna do? Well: Sadiq is Sadiq.

Even the names we refer to them by suggest that one of these two guys is viewed very differently from the other. I’ve instinctively slipped into referring to the mayor of London by his first name: he’s always Sadiq, not Khan, just as his predecessors were Boris and Ken. But, despite Eoin Clarke’s brief attempt to promote his 2015 leadership campaign with a twitter feed called “Labour Andy”, Burnham is still Burnham: formal, not familiar. 

I’ve a few theories to explain all this, though I’ve no idea which is correct. For a while I’ve assumed it’s about sincerity. When Sadiq Khan mentions his dad’s bus for the 257th time in a day, he does it with a wink to the audience, making a crack about the fact he won’t stop going on about it. That way, the message gets through to the punters at home who are only half listening, but the bored lobby hacks who’ve heard this routine two dozen times before feel they’re in the joke.

Burnham, it seems to me, lacks this lightness of touch: when he won’t stop banging on about the fact he grew up in the north, it feels uncomfortably like he means it. And to take yourself seriously in politics is sometimes to invite others to make jokes at your expense.

Then again, perhaps the problem is that Burnham isn’t quite sincere enough. Sadiq Khan genuinely is the son of a bus-driving immigrant: he may keep going on about it, but it is at least true. Burnham’s “just a northern lad” narrative is true, too, but excludes some crucial facts: that he went to Cambridge, and was working in Parliament aged 24. Perhaps that shouldn’t change how we interpret his story; but I fear, nonetheless, it does.

Maybe that’s not it, though: maybe I’m just another London media snob. Because Burnham did grow up at the disadvantaged end of the country, a region where, for too many people, chasing opportunities means leaving. The idea London is a city where the son of a bus driver can become mayor flatters our metropolitan self-image; the idea that a northerner who wants to build a career in politics has to head south at the earliest opportunity does the opposite. 

So if we roll our eyes when Burnham talks about the north, perhaps that reflects badly on us, not him: the opposite of northern chippiness is southern snobbery.

There’s one last possibility for why we may rate Sadiq Khan more highly than Andy Burnham: Sadiq Khan won. We can titter a little at the jokes and the fibs but he is, nonetheless, mayor of London. Andy Burnham is just the bloke who lost two Labour leadership campaigns.

At least – for now. In six weeks time, he’s highly likely to the first mayor of Greater Manchester. Slipperiness is not the worst quality in a mayor; and so much of the job will be about banging the drum for the city, and the region, that Burnham’s tendency to wear his northernness on his sleeve will be a positive boon.

Sadiq Khan’s stature has grown because the fact he became London’s mayor seems to say something, about the kind of city London is and the kind we want it to be. Perhaps, after May, Andy Burnham can do the same for the north – and the north can do the same for Andy Burnham.

Jonn Elledge edits the New Statesman's sister site CityMetric, and writes for the NS about subjects including politics, history and Daniel Hannan. You can find him on Twitter or Facebook.