The media regulator launched an investigation in April after Sky Newsadmitted that one of its senior executives authorised a journalist to conduct email hacking on two separate occasions.
BSkyB’s defence was that the hacking was in the “public interest”, even though intercepting emails is a prima facie breach of the Computer Misuse Act, to which there is no such defenxe written in law.
On Monday Ofcom said BSkyB had not broken rule 8.1 of the broadcasting code, which relates to fairness and privacy and states that broadcasters must follow a series of standards and principles to avoid the unwarranted infringement of privacy in connection with how material to be used in broadcasts is obtained.
“Ofcom concluded that the broadcaster’s right to freedom of expression, including the freedom to receive and impart information and ideas without interference, in the exceptional circumstances of this case, outweighed Mr and Mrs Darwin’s expectation of privacy,” said Ofcom in its 25-page ruling on the investigation.
Ofcom said that it did not receive a complaint from the Darwins, but Sky News’s admission of the hacking “was very serious and warranted further investigation”.
“There is particular current public concern about unauthorised accessing of voicemail and emails by journalists and/or by persons instructed on their behalf,” Ofcom said, adding that as well as fairness and privacy issues the investigation “may also be relevant to Ofcom’s ongoing duty to be satisfied that broadcast licensees remain fit and proper to hold a broadcast licence.”
Sky admitted that the hacking was authorised by the then managing editor, Simon Cole, who did not take legal advice.
Sky also admitted there were no written guidelines about authorising “potentially unlawful conduct”.
“Overall, although BSkyB’s conduct is at the boundaries of what is appropriate, it was warranted in the particular circumstances of this case,” said Ofcom, noting that any relevant information from the emails had been shared with police.
BSkyB, the Ofcom licence holder for the Sky News channel, said that it does not usually undertake investigative journalism but when it does “the record showed that it is extremely rare for it to authorise conduct which has the potential to involve contravention of the law”.
In its defence the company said Sky News’s approach was not “ad hoc or in any way casual” but was “serious and systematic”.
BSkyB said that as the Darwin’s case become a huge topic of news, there was “no doubt” there was prima facie evidence that it was a matter of public interest and that given the exceptional nature of the case its hacking tactic was “proportionate”.
Ofcom concluded: “On balance, therefore, and given all the factors set out above, Ofcom concluded that the broadcaster’s right to freedom of expression including the freedom to receive and impart information and ideas without interference, in the circumstances of this particular case, outweighed Mr and Mrs Darwin’s expectation of privacy.”