The Times and NightJack: an anatomy of a failure
The story of how, in a string of managerial and legal lapses, the Times hacked NightJack and effectively misled the High Court
I resolved to try to uncover the identity of its author . . .I began to systematically run the details of the articles through Factiva, a database of newspaper articles . . .Because of the startling similarities between the blog post and the case detailed in the newspaper report, I began to work under the assumption that if the author was, as claimed, a detective . . .I tried to link personal details about the author that are revealed on the blog with real-life events . . .I began to examine the posts on the blog in chronological order to try and find personal information about the author . . .Having undertaken this process, it was clear that the author of the blog was DC Richard Horton . . .
Towards the end of the witness statement, almost as if it was an afterthought, Foster then set out the comments on Horton’s brother’s Facebook page as mere “further confirmation” of the identification, rather than the “golden bullet” of his email exchange with Brett. Foster then signed his witness statement and everything was set for the resumed High Court hearing.
4 June 2009 – How the High Court was misled
On 4 June 2009 I heard an application in private whereby the claimant, who is the author of a blog known as “Night Jack”, sought an interim injunction to restrain Times Newspapers Ltd from publishing any information that would or might lead to his identification as the person responsible for that blog. An undertaking had been given on 28 May 2009 that such information would not be published pending the outcome. I indicated at the conclusion that I would refuse the injunction but, in the meantime, I granted temporary cover to restrain publication until the handing down of the judgment, when the matter could be considered afresh if need be.
It was asserted in the claimant’s skeleton [argument] for the hearing of 28 May that his identity had been disclosed to the Times in breach of confidence. By the time the matter came before me, on the other hand, Mr Tomlinson was prepared to proceed on the basis that the evidence relied upon from Mr Patrick Foster, the relevant journalist, was correct; that is to say, that he had been able to arrive at the identification by a process of deduction and detective work, mainly using information available on the internet.
[Horton’s barrister] needs to demonstrate that there would be a legally enforceable right to maintain anonymity, in the absence of a genuine breach of confidence, by suppressing the fruits of detective work such as that carried out by Mr Foster.
5-17 June 2009 – What the editor of the Times knew, and then what he does and does not do
David, you asked me to do you a memo on NightJack and events to date.
I first saw Patrick Foster on or about 19 May when he told me he’d been able to identify real live cases that an anonymous police blogger had been writing about.
Patrick felt this was seriously off side and probably a breach of the officer’s duty of confidence to the force. He therefore wanted to identify the guy and publish his name in the public interest. He then said he had gained access to the blogger’s email account and got his name.
This raised immediate alarm bells with me but I was unaware of the most recent law governing email accounts.
After this conversation, I told Patrick: “Never ever think of doing what you have done again.” I said he might just have a public interest defence if anyone ever found out how stupid he’d been. He apologised and promised not to do it again. Further, he said he would set about establishing Horton’s identity without reference to the email account. I did though say he would have to put it to Richard Horton that he was NightJack.
Last Thursday afternoon, our barrister told the court that through a process of deduction and elimination, Patrick could identify Horton as NightJack, but it looked as though we would lose the application because Horton’s silk was convincing the judge that he was entitled to have the information protected by the law of privacy and confidence.
On Monday of this week, Olswang wrote to us saying: (a) that Patrick had a history of accessing email accounts and pointing us to an incident at Oxford where he’d been temporarily rusticated for accessing someone else’s email account without authority, and (b) that their client’s email had been hacked into.
Looking at the old Oxford cuttings about Patrick’s brush with the proctors, I became aware of the possibility that Patrick’s access to Horton’s email account could constitute a breach of Section 1 of the Computer Misuse Act.
Patrick has always believed that his investigation of NightJack was in the public interest. When he came to me to say that he had found out that NightJack was Richard Horton and he had also obtained access to his email account, I made it very clear that this was disastrous, as he should not have done it.
Given my own failure to spot what could be a breach of Section 1 of the Computer Misuse Act, I am not in a position to advise sensibly in this case, but I would suggest that Patrick is given a formal warning that if he ever accesses anyone’s computer ever again without authority, whether it’s in the public interest or not, he will be sacked. You might add that the only reason he has not been sacked now is because he was told he might have a public interest defence if he was pursued under the [Data Protection Act].
At that time, it was not clear to Mr Chappell or to me exactly what Mr Foster had done, but the suggestion that he had accessed someone’s email account was a matter of great concern to both of us.
[Foster] had said he had gained access to the blogger’s email account and got his name . . .. . . failure to spot what could be a breach of section 1 of the Computer Misuse Act . . .
There are three things to consider:(1) What is the editorial value of this story?(2) Given there is a significant legal precedent in this, we’ll want to run something. Given the trouble it’s caused, are we now cutting off our own nose to spite our faces if we decide the story isn’t that interesting? Are we now stuck in a position of having to run something because of the legal processes?(3) What do we do about Patrick?
If we publish a piece by Patrick saying how he pieced together the identity (for which Eady praises him!) what happens if subsequently it is shown that he had accessed the files?What are the ramifications for him, you and the editor -- does our decision to publish, knowing that there had been a misdemeanour, indicate complicity and therefore real embarrassment or does Eady’s judgment get us off the hook?
Discussion at that meeting focussed on whether publishing a story identifying Night Jack was in the public interest. We debated the arguments for and against.We also discussed whether in effect we had little option but to publish because the Times had pursued High Court action and the injunction had been lifted. In these circumstances, I decided to publish.
Harding amplified this in oral evidence to the Leveson Inquiry:
We had a meeting, as I remember, to discuss this issue. The first and biggest one was: what was the public interest argument?
And of course, what was very frustrating was that’s exactly the conversation we should have had in advance of going to the High Court.
We had it after the fact and after the fact that Mr Eady’s judgment was being handed down, but it was an important argument that we had to address, because on the one hand, some people said, “Why are we trying to identify someone who is essentially a citizen journalist who is an anonymous blogger? Surely, if you like, he’s one of us?”
And on the other side there was a question which was: here is a police officer who appears to be in breach of his police duties and also there is a real question about this kind of commentary made anonymously on the internet -- the whole issue of anonymity on the web. And, having listened to that debate, I took the view that this was -- and [I] still believe that this was -- firmly in the public interest. This was what dominated that conversation.
The second issue was: what do we do about the fact that this case has been taken without our knowledge to the High Court? What do we do if we’ve taken up the time of the High Court? Mr Justice Eady has ruled that this is in the public interest; we are thereby enabling everyone to publish the identity of NightJack. But more importantly, will the Times not then get known for bringing vexatious lawsuits to the High Court if we don’t honour that judgment?
Third, there was a question which was: the reporting had already led to Mr Horton’s identification within the Lancashire Constabulary, and fourth, we believed we had a behavioural problem with one of our reporters. We were going to have to address that.
The way it had been presented to me -- and that’s obviously different with hindsight -- but the way it had been presented to me was there was a concern about Mr Foster’s behaviour but that he had identified him through entirely legitimate means. On that basis, and in the light of all of those four things, I took the decision to publish.
However, as Harding later admitted:
I can now see that we gave insufficient consideration to the fact of the unauthorised email access in deciding whether or not to publish.