Ofcom investigating whether Sky's 'canoe man' email hack was a warranted invasion of privacy

Ofcom is to assess whether Sky breached the Broadcasting Code when a journalist hacked into the emails of John Darwin. Darwin and his wife were both convicted of fraud after Darwin disappeared following an apparent canoeing accident leaving his wife to collect money from his life insurance and pension policies. The pair were later discovered living in Panama.  

Sky has admitted that it accessed Darwin's emails for the purposes of a story and has maintained that it was in the public interest to do so, however Ofcom is to assess whether the activity amounted to an unfair invasion of privacy.

"Ofcom is investigating the fairness and privacy issues raised by Sky News’ statement that it had accessed without prior authorisation private email accounts during the course of its news investigations," a spokesperson said. "We will make the outcome known in due course.”

Under the Communications Act, Ofcom must set out standards relating to content and other aspects of broadcasts, such as fairness and privacy, in codes that licensed broadcasters are required to adhere to. Ofcom has a duty under the  Act to set out procedures on how it will deal with complaints about breaches of those codes and has the power to undertake its own investigations into suspected rule violations.

Ofcom can issue commercial broadcasters with fines of up to £250,000 or 5% of their qualifying revenue, whichever is greatest, for breaches of its Broadcasting Code.

The Broadcasting Code requires that "any infringement of privacy in programmes, or in connection with obtaining material included in programmes, must be warranted." Broadcasters should be able to demonstrate why any invasion of privacy was justified. Sky News may argue that the infringement was in the public interest but "should be able to demonstrate that the public interest outweighs the right to privacy". The Code gives examples of where invasions of privacy may be warranted in the public interest and includes if an infringement leads to "revealing or detecting crime" or "exposing misleading claims made by individuals".

At the Leveson inquiry into press standards earlier this week, the head of Sky News, John Ryley, admitted (16-page / 79KB PDF) that the hacking of emails was a criminal offence.

Under the Computer Misuse Act it is an offence for a person to knowingly cause "a computer to perform any function with intent to secure access to any program or data held in any computer, or to enable any such access to be secured" without authorisation. There is no public interest defence available to justify a breach of the Act.

“As the head of Sky News, John Ryley, said earlier this month, we stand by these actions as editorially justified," a Sky spokesperson said, according to a report by The Register.

"The Crown Prosecution Service acknowledges that there are rare occasions where it is justified for a journalist to commit an offence in the public interest. The Director of Public Prosecutions Kier Starmer told the Leveson inquiry that 'considerable public interest weight' is given to journalistic conduct which discloses that a criminal offence has been committed and/or concealed" they said.